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ELEMENTS 



LAW AND PRACTICE 



y 



LEGISLATIVE ASSEMBLIES 



UNITED STATES OF AMERICA. 



BY 



LUTHER STEARNS GUSHING. 



SECOND EDITION. 




BOSTON: 

LITTLE, BROWN AND COMPANY 

1 8 G 6 



p 






\^ 



■wcAS 



Entered according to Act of Congress, in the year 1856, by 

LUTHER t». OUSHING, 

In the Clerk's Office of the District Courc of the District of Massachusetts. 






LAW AND PRACTICE 



OF 



LEGISLATIVE ASSEMBLIES. 



TO THE HONORABLE 

KOBEKT CHARLES WINTHROP, LL. D., 

WHO WAS, FOR MANY YEARS, 

SPEAKER OF THE HOUSE OF KEFHESENTATIVES OF MASSACHUSETTS : 

AND WHO, AFTERWARDS, AS SPEAKER OF THE HOUSE OF REPRESENTATIVES OF THE 

UNITED STATES, FOR THE THIRTIETH CONGRESS, 

PERFORMED THE DUTIES OF THAT OFFICE WITH SINGULAR ABIUTT i 

THIS VOLUME 

IS HUMBLY DEDICATED 

AS A TESTIMONIAL OP RESPECT AND AFFECTIOH 

BT THE 

AUTHOR. 



ADVEETISEMENT. 



The intelligent reader of history needs scarcely to be informed, 
that all the principles of civil liberty which now bear so abundant 
fruit, at least, in this country, fii-st germinated in, or were intro- 
duced into, the British Parliament, especially the House of 
Commons; and this circumstance has fui'nished an almost u-re- 
sistible temptation to indulge in political disquisition ; but I have 
resolutely abstained from every thing like it in the following pages, 
and have confined myself to a statement of the law and practice of 
parliament as a matter of fact merely. 

In compiling the following work, I have endeavored to present 
the American reader with as much of the law and practice of par- 
liament, as could, by any possibility, be useful, either as illustration 
or authority, to the members who compose our legislative assem- 
blies. 

The reader of the following pages, who is acquainted with the 
science of parliamentary law, only as it is set forth in the brief 
manuals hitherto published in this country, or the small English 
treatises published in the seventeenth century, will, doubtless, be 
astonished to find it so copious ; while those who are more familiar 
with the voluminous collections of the debates and journals of 
Parliament and of Congress, will be equally astonished to find that 
the science of parliamentary law can be compressed into so small 
a compass. 

Su- Edward Coke, who had been speaker of the House of Con- 



Vlll ADVERTISEMEIfT. 

mons in one of Queen Elizabeth's parliaments, says, in his Fourth 
Institute, when discoursing of the high court of parliament, that 
" as every court of justice has laws and customs for its direction, 
some by the common law ; some by the civil and canon law ; some 
by peculiar laws and customs ; so the high com-t of parliament sub- 
sists by its own laws and customs ; that it is the law and custom of 
parliament, that all weighty matters therein concerning the peers 
of the realm or commons, ought to be determined, adjudged, and 
discussed, according to the course of parliament, and not by the 
civil law, nor yet by the common law used in the more inferior 
courts ; " and, quoting from Fleta, a much more ancient author, he 
adds, in the margin, Ista lex ah omnibus est quaerenda, a multis 
ignorata, a pancis cognita. If this remark was a statement of fact, 
merely, it was not only true at the time it was uttered, but it is 
doubtless true at the present day ; the law of parliament, though 
diligently sought by all, being still unknown to many, and known 
only to a few. It was, however, the enunciation of a principle, 
probably in relation to the matter of privilege, and was made and 
repeated at a time when the law and custom of parliament was 
what each house saw fit to make it, and when the proceedings of 
parliament were conducted with closed doors and in secret, and 
were not known, in fact, or supposed to be so, until they were 
officially promulgated ; for which reason, the judges. Sir Edward 
Coke says, ought not to give any opinion of a matter of parlia- 
ment. 

But it is no longer ti'ue as it "^^as in the time of Sk Edward 
Coke, that the law of parliament is vague and uncertain. It is 
now a branch of the common law and as well settled as any 
other ; and it may be known and determined beforehand, with, at 
least, as much facility and certainty, as any other part of the civil 
or criminal law. 

Of this vast and comprehensive topic, thus brought wdthin the 
domain of science, it is proposed, in the following .pages, to treat of 
that part only which belongs to the two houses of parliament, 
irrespective of any orders of either house, except those which 
embody their law and practice. 



ADVERTISEMENT. IX 

The subject of this \vork is what may be denominated the com- 
mon parliamentary law as modified in om- legislative assemblies. 

The common parliamentary law of this country consists of the 
following elements : — 

1. The law of parliament, or that which belongs to every legis- 
lative assembly of English origin, by the mere fact of its creation. 
The best evidence of this is to be found in the usages of the house 
of commons. In this country, it is common for each assembly, 
besides the common parliamentary law, to be governed by its own 
rules and orders. 

2. Usages introduced by practice into this country, and which 
do not depend for their existence upon any rule or order. The 
most prominent if not the only proceeding of this kind is the 
motion to reconsider. This motion is usually regulated in each 
assembly by a special rule. 

3. Proceedings, which occasionally take place in parliament, but 
are ixi frequent use in this country. An appeal from the decision 
of the presiding officer, on a point of order, is of this kind. 

4. Modifications introduced by constitution. The most com- 
mon provision of this sort is the requisition that certain questions 
shall be taken by the yeas and nays of the members. A very fre- 
quent provision of the same kind is, that every assembly shall be 
governed by its own rules and orders. 

5. Proceedings, which very commonly prevail, and which depend, 
for their existence, upon the rules and orders of each assembly, and 
which would not exist unless specially provided for by rules and 
orders for the purpose. Thus, it is generally established, in om" 
legislative assemblies, that certain motions shall be decided with- 
out debate ; that motions may be withdrawn, modified, or divided, 
at the pleasure of the mover; and that amendments shall be in 
harmony with the proposition to be amended. 

In the execution of this plan, I have consulted, — besides the 
works on the general subject, Hackwill, Scobell, and Elsyng, pub- 
lished about the middle of the seventeenth century ; the work of 
Pettyt, published towards the close of the seventeenth century ; and 
that of Hatsell, the first edition of which was published towards the 



X ADVERTISEMENT. 

close of the eighteenth ; and the scientific treatises of ]\ir. May, 
recently published ; — the Jom-nals of the Lords and Commons ; the 
various works on controverted elections ; and the debates in the 
two houses of parliament from the earliest to the latest times. Of 
the earlier debates, down to the year 1803, there are two principal 
series. The first consists of Sir Symonds D'Ewes's journals of 
Queen Elizabeth's parliaments ; the first volume of the journals 
of the commons, during the parliaments of James First and 
Charles First ; Grey's Debates, after the restoration, in ten volumes ; 
Commons and Lords' Debates ; Parliamentary Register, of which 
there are two series ; Debates in Parliament, and the Cavendish 
Debates, of which three numbers only have been published. 

The second series is contained in Hansard's Parliamentary His- 
tory, extending fi-om the earliest times to the year 1803. The former 
has been more fi-equently referred to, as the latter, for the most 
part, omits points of order. Plansard's, sometimes called Cobbet's, 
Parliamentary Debates, extend in three series, fi'om about the year 
1803, to the present time. The series is indicated in each case by 
its number. I have consulted for the American practice, the Jour- 
nals and Debates in the t^vo Houses of Congi'ess. The Journals 
and Debates of the Congress of the Confederation have also been 
consulted for the same purpose. The Jom-nals of the first thu'teen 
congresses, having been reprinted, are cited by the number indicat- 
ing the volume ; those of the fourteenth, and succeeding congresses, 
are referred to by the congress and session. The references to all 
these works, and to several others of a legal or miscellaneous 
character, wiU be readily known, and need not be particularly 
described. 

The only scientific treatises on parliamentary law, recently pub- 
lished, are those of ]VIr. May, whose larger work has lately reached 
its thh'd edition. Whenever it is cited in the following treatise, 
without an indication Of the edition, the second is always referred to. 
His smaller work, on the rules and orders of the House of Com- 
mons, is one of the best summaries that I have ever seen. Mr. 
Jefferson's Manual, which has been so fi-equently repuljlished, has 
been consulted, and fi-eely used, both as regards the parliamentary 



ADVERTISEMENT. Xt 

law of England and the changes which it has undergone in this 
country. 

I commenced accumulating materials for this work, and began 
the writing of it many years ago, and might have been longer in 
bringing it to a close ; but, admonished by ill and uncertain health, 
that if I would make sure of benefiting my fellow-countrymen, 
in this respect, I must terminate the work speedily, I have made 
what haste I could, consistently with the leisure afforded me from 
other pursuits. I do not mention this in order to deprecate criti- 
cism. The book has been prepared according to its original plan, 
and is now presented to the public, in the style in which it was pro- 
posed. I can, however, say with Mr. Jefferson, in the preface to his 
Manual: — "I have begun a sketch which those who come after 
me will successively correct and fill up, till a code of rules shall be 
formed . . . the effects of which may be accuracy in business, 
economy of time, order, uniformity, and impartiality." 

The references, which are over four thousand in number, and 
might have been almost indefinitely increased, are not, in all cases, 
available as direct authority for the positions to which they are 
cited. In such cases, they indicate merely where the same or a 
similar subject is treated of. With the exception of those to the 
Journals of the Lords and Commons, the references are chiefly 
made, not from the books themselves, but from extracts or digests 
made by me or under my immediate direction ; it is probable, there- 
fore, that if the passage referred to is not found at the page cited, it 
will be on an adjoining page. 

The work is divided into nine parts, each of which is distinct by 
itself; and this division is not only natural and scientific in its 
character, but will also enable the reader, by means of the titles pre- 
fixed to the several parts, to turn to and examine any particular 
subject, without the labor of going over the whole. 

The author of the Lex Parliamentaria, in the conclusion of his 
treatise, addresses himself to the people of Great Britain, in lan- 
guage which is equally applicable to the people of the United 
States, namely: — "There is nothing that ought to be so dear to 
the Commons of Great Britain, as a Free Parliament, that is, a 



XU ADVERTISEMENT. 

House of Commons every way free and independent ; . . . free in 
their persons ; free in their estates ; free in their elections ; free in 
their returns; free in their assembling; free in their speeches, 
debates, and determinations ; free to complain of offenders ; free 
in their prosecutions for offences ; and therein free from the fear or 
influence of others, how great soever ; free to guard against the 
encroachments of arbitrary power ; free to preserve the liberties and 
properties of the subject, and yet free to part with a share of those 
properties, when necessary for the service of the public." 

L. S. C. 
Boston, May 1 1856. 



TABLE OF CO^^TENTS. 



PAOI 

PRELBIINAIIY 1-5 



PART FIRST. 

OP THE ELECTION OF THE MEMBERS. 



CHAPTER FIRST. 

OP CONSTITUENCIES 9-12 

CHAPTER SECOND. 

OF THE PERSONS COMPETENT TO BE ELECTORS. 

Section I. Of persons excluded by the common political law from the 

right of suffrage 13-16 

n. Of the constitutional qualifications requisite for the exercise of 

the right of suffrage 16-20 

1. Citizenship 17 

2. Freedom 17 

3. Residence 17 

4. Property 20 

5. Payment of a tax 20 

, 6 to 12. Other qualifications 20 

b (xiii) 



XIV CONTENTS. 

Sectiox m. Of disqualifications for the exercise of the right of suffrage 20-23 

1. Paupers 21 

5. Persons convicted of certain crimes ... 21 

6. Persons of color ....... 22 

2, 3, 4, 7. Other disqualifications 23 



CHAPTER THIRD. 

OF THE PERSONS COMPETENT TO BE ELECTED. 

Section I. Of qualifications and disqualifications by the common politi- 
cal law . , 24-26 

n. Of qualifications expressly required 26-30 

HI. Of disqualifications expressly declared 30-33 

1. Dlsqualifpng offices or employments ... 31 

• 2. Personal disquahfications 32 

CHAPTER FOURTH. 

OF THE MODE OF ELECTIOK. 

Section I. Of the right to vote . . . 34-36 

n. Of the diflerent modes of voting 36-43 

1. Oral sufirage 37 

2. Ballot . 39 

HL Of the principle upon which the result of an election is de- 
termined 43-48 

1. Plurality 44 

2. Majority 45 

3. Origin and inti'oduction of the majority principle . 47 



CHAPTER FIFTH. 

OF THE RETURN OF THE PERSONS ELECTED ...••• 49-52 

CHAPTER SIXTH. 

OF CONTROVERTED RETURNS AND ELECTIONS. 

Section I. Of the tribunal and mode of proceeding .... 54-64 
n. Of rights of membership, as afiected by the form or substance 

of the return 64 

HI. Of elections of, and votes given for, disqualified persons . 66 
IV. Of elections as affected by proceedings injurious to the free- 
dom of election 67-71 

1. Riots 68 

2. Bribery 68 



CONTENTS. XV 

Section V. Of elections as affected by the qualifications and conduct of 

the returniun; officers ...... 71-77 



PART SECOND. 

OF THE CONSTITUTION OF A LEGISLATIVE ASSEMBLY. 



CHAPTER FIRST. 

OF THE ASSEMBLING, QUALIFYING, AND ORGANIZING OF A LEGISLATIVE 

ASSEMBLY. 

Section I. Preliminary proceedings in the house of commons in Eng- 
land 82-86 

II. Preliminary proceedings in the legislative assemblies of the 

United States 8G-94 

III. Quorum 94-101 

IV. Compelling attendance of absent members . . . 101-103 
V. Organizatiou 103-109 



CHAPTER SECOND. 

of THE OFFICERS OF A LEGISLATIVE ASSEMBLY. 

Section I. Presiding officer 110-127 

H. Recording officer 128-133 

III. Executive officer 133 

IV. Chaplain 134 

V. Printer 135 



CHAPTER THIRD. 

of the place and MANNER OF SITTING OF A LEGISLATIVE ASSEMBLY, 

AND OF THE FORMAL PROCEEDINGS THEREIN FOR THE 

TRANSACTION OF BUSINESS. 

Section I. Place and manner of sitting 136-145 

II. Opening, continuation, and close, of the daily sitting • 145-151 
in. Personal deportment of the members, whilst the assembly 

is sitting ......... 152 

IV. Manner of speaking 153-155 



Xvi CONTENTS. 

Sectiox y. Of the several forms of taking the question, in order to 

ascertain the sense of a legislative assembly . . . 155-167 
VI Of the principle or rule of decision in a legislative assem- 
bly 167 

YIl. Of the journal or record of the proceedings . . . 168-175 

Vni. Of the printing by order of a legislative assembly . . 175-177 

IX. Of the attendance and pay of the members . . . 177-182 



CHAPTER FOURTH. 

OF THE FUNCTION'S OF THE EXECUTIVE IN COXN'ECTIOX WITH THE 

LEGISLATIVE DEPARTMENT . ' 182-186 

CHAPTER FIFTH. 

OF VACANCIES, AND ELECTIONS TO FILL THEM. 

Section I. Refusal to accept ........ 192 

II. Refusal to quaUfy 193 

m. Resignation 193 

rV. Expulsion 193 

V. Adjudication of a controverted return and election . 1 94 

VI. Death 194 

VH. Disquahfication 195 

VIII. Acceptance of disqualifying or incompatible offices . 195 

IX. Of vacancies in the congress of the United States . . 196-200 

CHAPTER SIXTH. 

OF THE SESSION, ADJOURNMENT, PROROGATION, ASSEMBLING BY PROCLAMA- 
TION, AND DISSOLUTION OF A LEGISLATIVE ASSEMBLY. 

Section I. Session 200-206 

n. Adjournment 206 

HI Prorogation 207-209 

IV. Assemohng by proclamation 209 

V. Dissolution . . 210 



CONTENTS. XVU 



PART THIRD. 

OF THE PRIVILEGES AND INCIDENTAL POWERS OF A LEGISLATIVE 

ASSEMBLY. 



CHAPTER FIRST. 

DF THE GENERAL NATURE OP THE PRIVILEGES AND INCIDENTAL 

POWERS OF A LEGISLATIVE ASSEMBLY ...... 215-222 



CHAPTER SECOND. 

OF THE PERSONAL PRIVILEGES OF THE MEMBERS. 

Section I. Exemption from legal process .... 223-241 

Art. I. Of the nature and extent of this privilege as to 

persons . . . . . . 224 

H. Of the cases in which this privilege is appli- 
cable ...... 226 

HI. Of this privilege as affected by the constitu- 
tions of the several States . . . 229 
IV. Of the duration of this privilege . . 233 
V. Of the manner in which this privilege is to be 

taken advantage of . . . . , 235 

L Of proceedings by the authority of the 

assembly .... 236 

II. Of proceedings by the authority of the 

court to which the process is returnable 237 

HI. Of proceedings by the authority of some 

other competent tribunal . . 238 

n. Exemption from service as jurors or witnesses . 241 

HI. Freedom of debate and proceeding . . . 242-244 

IV. Privilege of franking ..... 244 

V. Personal disabilities incident to membership . . 244 



CHAPTER THIRD. 

OF THE COLLECTIVE OR AGGREGATE PRIVILEGES OF A LEGISLATIVE 

ASSEMBLY. 

1, 2. Elections ; officers ...... 246 

3. Rules of proceeding . . . . . 247 



XVIU CONTENTS. 



4. Attendance and service of its members . 

5. Secrecy of debates and proceedings . . 

6. Expulsion or discharge of a member 

7. Protection against personal \-iolenc;c 

8. Protection against slanderous and libellous attacks 

9. Protection against corruption 

10. Right to be informed by public officers 

11. Right to require opinions of the judges . . 

12. Right of investigation . . . 



247 
250 
250 
251 
251 
252 
252 
253 
253 



13. Freedom from interference .... 254 
CHAPTER FOURTH. 

OF THE INCIDENTAL POTVERS OF A LEGISLATITB ASSEMBLY, 

Section I. Of the incidental jurisdiction of a legislative assembly . 257-259 

1. Civil jurisdiction .... 258 

2. Criminal jurisdiction .... 258 

3. Jurisdiction of contempts . . . 259 
n. Of the mode of proceeding by a legislative assembly, in 

the exercise of its judicial functions . . . 260-265 

1. Civil proceedings .... 260 

2. Criminal proceedings .... 262 

3. Proceedings in case of contempt . . 265 
HI. In -what manner the judgments of a legislative assembly are 

enforced ....... 265 

IV. Of the punishments which a legislative assembly may Inflict 266-268 

1. Fine ...... 266 

2. Imprisonment . . . . . 267 
8. Reprimand ...... 268 

4. Expulsion ..... 268 
V. In what manner and to what extent the Incidental powers of 

legislative assemblies In the United States have been 

affected by constitutional and legal provisions . . 268-272 

Art. I. Incidental powers relating to members . 269 
n. Incidental powers relating to persons not 

members ..... 270 



CONTENTS. XIX 



PART FOURTH. 

OF THE POWERS AND FUNCTIONS OF A LEGISLATIVE ASSEMBLY 

AS SUCH. 



CHAPTER FIRST. 

OF THE GENERAL POWERS OF A LEGISLATIVE ASSEMBLY IK THE MAKING 

OF LAWS 

Section I. Powers of the assembly as an aggregate body . . 277-283 

1. Legislative powers of parliament . . . 277 

2. Legislative powers as restricted by constitutional pro- 

visions in the United States . . . 281 

n. Powers of the members individually . . . 283-288 



CHAPTER SECOND. 

OF THE RELATION OF THE DIFFERENT BRANCHES OF THE LEGISLATIVE 
DEPARTMENT TO ONE ANOTHER. 

Section L Of the good correspondence and harmony which ought to 

prevail between the different branches . . . 289 

n. Of the duty of each branch to facilitate the proceedings of 

the others ....... 290 

nL Of the interference of any of the branches in the proceed- 
ings of the others ...... 291 



CHAPTER THIRD. 

of THE EVIDENCE AND INFORMATION ON WHICH PARLIAMENTARY 
PROCEEDINGS ARE FOUNDED. 

Section I. Of the nature of the evidence upon which a parliamentary 

proceeding may be founded .... 293 

IT. How the different kinds of evidence are applicable . 293 

m. Of the evidence of common fame . . . 294 

IV. Of the statements of members . . . 294 

V. Of other sources of evidence . ^95 



XX 



CONTENTS. 



CHAPTER FOUETH. 



OF THE FORMS IN WHICH THE POWER OF LEGISLATION IS EXERCISED BY 
A LEGISLATIVE ASSEMBLY. 

Section I. Classification and description of the different kinds of bills . 297-302 

1. Public bills ..... 299 

2. Private bills ...... 300 

3. Judicial bills ..... 301 
n. Of certain classes of laws wbich are withheld from the legis- 
lative authority, or regulated by constitutional provisions 302-304 



CHAPTER FIFTH. 

op the rules or LAWS BY WHICH THE PROCEEDINGS OF A LEGISLATIVE 
ASSEMBLY ARE REGULATED. 



Section I. General view of the forms and rules of 


proceeding 


304 


n. Sources of parliamentary rules . 






306-311 


I. Usages 


• 


* • 


306 


n. Resolutions 






306 


ni. Precedents . . 


• 


• • 


307 


IV. Orders . 






308 


1. Standing orders 


• 


• • 


309 


2. Sessional orders 






309 


3. Occasional orders 


• 


• • 


310 


V. Statutes . 






310 



HL Of the rules by which legislative assemblies in this country 

are governed ...... 311-313 

IV. Of the forms in which the proceedings of a legislative assem- 
bly are expressed ...... 313-316 

1. Motion or vote ..... 313 

2. Order ...... 314 

3. Resolution . . . • • 314 

4. Address ...... 315 



CONTENTS. XXI 



PART FIFTH. 



OF COMMUNICATIONS BETWEEN THE DIFFERENT BRANCHES OF A 

LEGISLATIVE BODY, AND BETWEEN THEM OR EITHER 

OF THEM AND OTHER BODIES OF PERSONS. 



CHAPTER FIRST. 

OP COMMtmiCATIONS BETWEEN THE TWO BRANCHES. 

Section I. Communications by message 320-327 

11. Communications by conference 327-347 

III. Communications by committees 347 

CHAPTER SECOND. 

op communications between the two branches, or EITHER OP THEM 
AND THE EXECUTIVE. 

Section I. Of communications from the sovereign to the two houses or 

either of them 348-357 

I. Communications by the sovereign in person, or by 

commissioners ....... 349 

n. Communications of the sovereign by message . 351 

n. Of communications from the two houses, or either of them, 

to the sovereign 357-360 

CHAPTER THIRD. 

OP accounts, papers, returns, presented in pursuance of or- 
ders, OR IN obedience TO ACTS OF PARLIAMENT . . . 360-369 

CHAPTER FOURTH. 

OP WITNESSES, AND THEIR ATTENDANCE AND EXAMINATION BEFORE EITHER 
HOUSE OR COMMITTEES. 

Section I. Of the occasions on which an examination of witnesses may 

take place 369 

H. Of the several modes of obtaining or compelling the attend- 
ance of witnesses ........ 370-379 

HI. Of the examination of witnesses . . . • . 379-395 



XXU CONTENTS. 

Section TV. Of the privileges of witnesses 395-400 

Art. I. Freedom from arrest, in coming, staying, and 

returning ...... S95 

1. Protection 395 

2. Discbarge from arrest . . . 396 
H. Protection of a witness against the conse- 
quences of the disclosures made by him in 

his evidence 397 

m. Protection against abuse and insult, personal 
violence, and injury actual or threatened 
to person or property . . . . 399 

v. Of misconduct on the part of witnesses, or other persons, 

relative to their attendance and examination . . 400-404 

VI. Of other matters relating to witnesses and their examination 404-406 



CHAPTER FIFTH. 

OF HEARING PARTIES INTERESTED. 

Section I. Rights of members to their seats 410 

n. Infliction of punishment 410 

in. Inquiries respecting the conduct of public officers . . 411 

IV. Bills of attainder and of pains and penalties ... 411 

V. Private bills 411 

VI. Public biUs, and other measures of a public character . 412 

CHAPTER SIXTH. 

PUBLIC OFFICERS SUBJECT TO THE ORDER OF THE ASSEMBLT. 

Section I. Returning officers • . 417 

n. Prosecution and punishment of offenders .... 418-425 

in. Publishing or distributing the orders of the house . . 425 

IV. Rendering assistance to the officers of the house .' . 426 
V. Preservation of the peace in the place where the parliament 

is sitting 428-430 

VI. Right of the house of lords to call on the judges to give their 

opinions on questions of law . . . . • . . 430 

Vn. Right to refer matters to public officers .... 43! 

CHAPTER SEVENTH. 

OF petitions. 

Section I. Of the right of petition 432-439 

H. Of petitions as to their form 439-449 

Art. I. As to the material upon which, and the manner 

in which, a petition is to be written . . 439 



CONTENTS. XXllI 

Art. n. As to the several parts of a petition . 441 

III. As to the signing of a petition . . . 443 

IV. As to matters extraneous to a petition . 447 
Section III. Of petitions as to their substance 449-454 

IV. Of the presentation and reading of petitions . . 454-465 
V. Of certain classes of petitions, in reference to which the 

preliminary proceedings are peculiar .... 465-471 

Art. I. Election petitions 466 

II. Petitions relating to or affecting an election 

case 467 

m. Petitions charging or implicating members 468 

IV. Petitions for relief out of the public money 468 

V. Petitions against tax bills .... 469 

VI. Private petitions and previous petitions . 470 

VI. Of the present practice with regard to the presentation of 

petitions 471-476 

VII. Of subsequent proceedings on petitions . . . 476 



PART SIXTH. 

OF THE FORMS AND METHODS OF PROCEEDING IN A LEGISLATIVE 

ASSEMBLY. 



FIRST DIVISION. 

MOTIONS. 



CHAPTER FIRST. 

OF MOTIONS IN GENERAL. 

Section I. Introductory . . . . . . . . . 481^85 

n. Notice of motion 485-491 

in. Making and withdrawal of motions 491 

CHAPTER SECOND. 

OF MOTIONS CONSIDERED WITH REFERENCE TO THEIR SUBSTANCE . 502-509 

CHAPTER THIRD. 

OP MOT-IONS CONSIDERED WITH REFERENCE TO THEIR FORM . . 509-513 



XXIV CONTENTS. 



CHAPTER FOURTH. 

OF MOTIONS COXSIDERED WITH REFERENCE TO THE TIME WHEN 

THEY ARE MADE 613-515 

CHAPTER FIFTH. 

OF MOTIONS FOR THE DISPOSITION OF OTHER BUSINESS. 

Section I. Of motions to amend 516-537 

Art. I. General rules applicable to amendments . 517 
n. Amendments considered witli reference to their 

substance 519 

HI. Amendments considered with reference to their 

form 523 

1. Amendments by leaving out ■words . 523 

2. Amendments by inserting words . . 526 

3. Amendments by leaving out and inserting 526 

4. Division of a proposition into two or more 

questions 528 

5. Filling blanks - 531 

6, 7, 8, 9. Addition, separation, transposition, num- 
bering of paragraphs, formal words . 533 

IV. Of the congruity of amendments as required by 

rule in this country ..... 633 

n. Of motions to postpone 537-543 

1. Effect of an order for postponement, on 

the day on which it is made . . 538 

2. Effect of, between the day of the making 

of the order and the day assigned • 538 

3. Effect of, on the day assigned . . 539 

4. Effect of, after the day assigned . . 541 

5. Of the effect of the motion to postpone, 

according to parliamentary usage in 

this country 542 

ni. Of motions to commit 543 

IV. Of motions to suppress 544-562 

Art. I. Adjournment 544 

n. Orders of the day 647 

m. Previous question 549 

1. Of the previous question according to the 

common parliamentary law . . 550 

2. Of the previous question as used by legis- 

lative assemblies in the United States . 555 

IV. Amendment 561 

CHAPTER SIXTH. 

of THE ORDER, SUCCESSION, AND PRECEDENCE OF MOTIONS. 

Section I. Of motions relating to and connected with the question pending 563-581 



CONTENTS. XXV 

Art. T. Subsidiary questions 563 

II. Incidental questions . . . . • . 567 

1. Questions of order .... 567 

2. Reading papers 572 

3. Withdrawal of a motion ... 574 

4. Suspension of a rule .... 575 

5. Of taking the question by yeas and nays 579 
Section n. Of motions related to, or connected with, some subject which 

is deemed to be of paramount importance . . . 581-589 

1. Questions of privilege . . . 581 

2. Privileged questions .... 585 

III. Of motions relating to the general course and order of pro- 

ceeding .......... 689 

IV. Of the order, succession, and precedence, of motions, as es- 

tablished by rule in this country 590 

V. Of the general course or order of business in a legislative 

assembly 592 



SECOND DIVISION. 

ORDER IN DEBATE. 



CHAPTER FIRST. 

WHAT CONSTITUTES A DEBATE, AND HEREIN OF THE MEMBERS WHO ARE TO 
SPEAK, AND OF THEIR PERSONAL DEPORTMENT WHILE SPEAKING. 

Section I. Of the grounds upon which preferences are allowed in assign- 
ing the floor to particular members ..... 599-604 
Exc. I. The original mover of a proposition on its being 

first debated 599 

n. A new member, on his first rising to address 

the house ....... 601 

in. The member who rose last to speak, when the 

debate was adjourned .... 602 

IV. Members entitled to the floor on grounds of 
preference, irrespective of their peculiar 
character ....... 602 

n. Personal deportment of members in speaking . • . 604-606 

CHAPTER SECOND. 

OF THE RULE THAT NO MEMBER IS TO SPEAK, UNLESS TO A QUES- 
TION ALREADY PENDING OR TO INTRODUCE A QUESTION . • 606-615 

c 



XXVI CONTENTS. 



CHAPTER THIED. 

OF THE RULK THAT NO MEMBER IS TO SPEAK MORE THAK ONCE TO THE 

SAME QUESTION. 

Section I. What is understood by a speaking 616 

n. What is understood by the same question ... 618-625 

CHAPTER FOURTH. 

OF THE RULE THAT A QUESTION IS OPEN FOR DEBATE UNTIL IT 

IS FULLY PUT ON BOTH SIDES 626 

CHAPTER FIFTH. 

OF THE RULES RELATING TO RELEVANCY IN DEBATE. 

Section I. As to the question itself 628-632 

II, As to the mannei' of speaking to the question ... 632-638 

CHAPTER SIXTH. 

OF THE RULES RELATING TO THE SOURCES FROM WHICH THE STATEMENTS 
INTRODUCED BY A MEMBER IN DEBATE ARE DERIVED. 

Section I. Statements made by members of their own kno^vledge or belief 639 
n. Matter introduced from the journals or papers of the house, or 

other public records 640 

in. Matter introduced from extraneous sources . . . 641-645 



CHAPTER SEVENTH. 

OF THE RULES RELATING TO THE PRESERVATION OP ORDER, DECENCY, AND 
HARMONY AMONG THE MEMBERS. 

Section I. As to the manner in which the individual members are to be 

designated ......... 646 

n. As to the exemption of members from being personally ad- 
dressed or appealed to, in debate, by other members . 647 
TTT. As to the exemption of members from being personally re- 
marked upon, or, in other words, as to personality in 
debate 648-657 



CHAPTER EIGHTH. 

OF THE RULES RELATING TO THE PRESERVATION OF THE HAR- 
MONY AND INDEPENDENCE OF THE SEVERAL BRANCHES OF THE 
LEGISLATURE 658-666 



CONTENTS. XXVU 

CHAPTER NINTH. 

OF THE RULES RELATING TO REGULARITY OF PROCEEDING . . 666-671 

CHAPTER TENTH. 

OF THE RULES RELATING TO THE RESPECT DUE FROM THE MEMBERS 
TO THE HOUSE TO WHICH THEY BELONG, — TO ITS POWERS, ACTS, 

AND PROCEEDINGS, AND TO THE GOVERNMENT AND LAWS OF 

THE COUNTRY 671-674 

CHAPTER ELEVENTH. 

OF PROCEEDINGS WITH REFERENCE TO DISORDERLY OR UNPARLIAMENTARY 
WORDS, OR IRREGULARITY IN DEBATE. 

Section I. Of proceedings to prevent or correct irregularity in debate . 675-682 
n. Of proceedings to compel a member to explain, retract, or 

apologize, for disorderly words ...... 682-686 

Art I. As to the time when the complaint for disor- 
derly words must be made .... 683 

n. As to the mode of proceeding for obtaining the 
order of the house to take down the words, 
and taking them down and verifying them . 684 

in. As to subsequent proceedings .... 686 

CHAPTER TWELFTH. 

RULES FOR THE CONDUCT OF MEMBERS PRESENT IN THE HOUSE 

DURING A DEBATE 687 



THIRD DIVISION. 

OF ASCERTAINING THE SENSE OF THE ASSEMBLY IN REFERENCE TO 
ANT QUESTION BEFORE IT. 



CHAPTER FIRST. 

OF THE RIGHT AND DUTY OF MEMBERS TO VOTE .... 692-694 

CHAPTER SECOND. 

OF THE DIFFERENT MODES OF TAKING A QUESTION. 

Section I. Of taking the sense of the house by their common consent 695 



XXViii CONTENTS. ^ 

Section II. Of taking the sense of the house by the voices . . . 696-698 

III. Of taking the sense of the house by a division . . 698-705 

IV. Of the diiferences between the two houses in the mode of 

taking the question 705-707 

V. Of some usages and methods in the taking of questions, 

which are peculiar to this country . . . . . 707 

CHAPTER THIRD. 
OF t'he question thus takex 708-711 

CHAPTER FOURTH. 

OF THE DISALLOWANCE OR ADDITION OF VOTES. 

Section I. Of the allowance of votes refused 712 

n. Of the disallowance of votes received .... 712-718 



PART SEVENTH. 

OF COMMITTEES AND THEIE FUNCTIONS. 



FIRST DIVISION. 

SELECT COMMITTEES. 



CHAPTER FIRST. 

OF THE DIFFERENT KINDS OF SELECT COMMITTEES ... 724 

CHAPTER SECOND. 

APPOINTMENT OF SELECT COMMITTEES. 

Section I. As to who may be of a committee 726 

n. As to the number of members 727 

HI. As to the time of appointment 728 

IV. As to the manner of appointment of a select committee . 729-736 

Akt. I. Appointment of a select committee on motion . 729 

n. Appointment of a select committee by ballot . 733 

ni. Other modes of appointment .... 735 



CONTENTS. XXIX 



CHAPTER THIRD. 

POWER AND AUTHORITY OF SELECT COMMITTEES. 

Section I. Of the powers with which committees are invested, to enable 
them to discharge the duties of their appointment ; or, in 
other words, of the incidental powers of committees . . 737-740 

Art. I. As to the time of sitting .... 787 

n. As to the place of meeting .... 739 

in. As to sending for persons, papers, and records 739 

IV. As to reporting from time to time . . . 740 
n. Of the powers of committees as to the subjects referred to 

them 741 



CHAPTER FOURTH. 
forms of proceedings in select committees .... 742-745 

CHAPTER FIFTH. 
of instructions to committees 746 

CHAPTER SIXTH. 

of other intermediate proceedings in the house "WITH REF- 
ERENCE TO COMMITTEES ... 748 

CHAPTER SEVENTH. 

OF THE REPORT 749-755 

CHAPTER EIGHTH. 

OF MAKING THE REPORT, AND PROCEEDINGS THEREON . . . 755-761 



SECOND DIVISION. 

COMMITTEES OP THE WHOLE. 



CHAPTER FIRST. 

APPOINTMENT OF A COMMITTEE OF THE WHOLE .... 764 



XXX CO]S'TEIfTS. 

CHAPTER SECOND. 

SITTING OF A COMMITTEE OF THE WHOLE 764 

CHAPTER THIRD. 

CHAIRMAN AND CLERK OF THE COMMITTEE ..... 765-767 

CHAPTER FOURTH. 

DUTIES OF THE SPEAKER AND OTHER OFFICERS OF THE HOUSE WHILE 

THE HOUSE IS IN COMMITTEE OF THE "WHOLE .... 767-769 

CHAPTER FIFTH. 

PROCEEDINGS ON GOING INTO A COMMITTEE OF THE WHOLE . 769-771 

CHAPTER SIXTH. 

OF THE PROCEEDINGS IN COMMITTEE OF THE WHOLE. 

Section L Quorum 772 

11. Authority of the committee 772 

in. Making motions, and speaking in conunittee of the whole . 773-776 

IV. Formal motions 776 

CHAPTER SEVENTH. 

OF THE REPORTS OF COMMITTEES OF THE WHOLE. 

Section I. Resolutions 778 

II. Direction to move the house or to state a fact ... 779 

HI. Special reports 779 

IV. Report of the subject-matter referred to the committee . 780 

CHAPTER EIGHTH. 

OF MAKING THE REPORT, AND PROCEEDINGS THEREON . . . 780 

CHAPTER NINTH. 

OF SOME PARTICULAB COMMITTEES 781-788 



THIRD DIVISION. 
JOINT coinnTTEES 789-791 



CONTENTS. 



XXXI 



PART EIGHTH. 



OF THE PASSING OF BILLS. 
HISTORY OF THE PRESENT FORM OF STATUTES, AND THE MODE OF 



PASSING THEM 



795-798 



FIRST DIVISION. 

PUBLIC BILLS. 



CHAPTER FIRST. 

INTRODUCTORY 800-804 

CHAPTER SECOND. 

OF THE INTRODUCTION OF THE SUBJECT OP A BILL INTO THE HOUSE. 

Section!. Petition 804 

II, Address or message 804 

III. Reading of some document or message .... 805 

IV. Motion 806 

CHAPTER THIRD, 

OP THE INTERMEDIATE PROCEEDINGS BETWEEN THE INTRODUCTION OF THE 
SUBJECT AND THE INTRODUCTION OF A BILL. 

Section I. Debates of the house 806 

H. Heads ; articles ; resolutions 808 

HI. Committee 808-811 

CHAPTER FOURTH. 

OF THE AUTHORITY FOR THE INTRODUCTION OF A BILL. 

Section I. Leave or order to bring in a bill 811-814 

11. Committee to prepare and bring in a biU .... 814 



xxxu 



C02s"TENTS. 



CHAPTER FIFTH. 

OF THE PREPARATIOIf OR DRAWESTG AXD THE DIFFERENT PARTS OF A BILL, 

Section I. Title 816-818 

n. Preamble 818 

ni. Statement of the enacting authority ,819 

TV. Puiriew or body of the act 820 

V. Provisos 821 

VI. Schedules 822 

VII. Date 822 

VTTL Of the general preparation of a biU 823-826 

CHAPTER SIXTH. 

OF THE PRESENTATION AND RECEPTION OF A BILL .... 826-829 

CHAPTER SEVENTH. 

OF THE SEVERAL STAGES THROUGH "WHICH A BILL PASSES . 829-833 

CHAPTER EIGHTH. 

OF THE FIRST READING OP A BILL AND ORDER FOR SECOND . . 834-840 

CHAPTER NINTH. 

OF THE SECOND READING AND ORDER FOR COMMITMENT . . . 840-843 

CHAPTER TENTR 

OF INSTRUCTIONS TO COMMITTEES 843-845 

CHAPTER ELEVENTH. 

OF COMMITMENT AND AMENDMENT 845-854 

CH^\PTER TWELFTH. 

OF THE REPORT OP THE COM>nTTEE, AND PROCEEDINGS THEREON 855 -858 

CHAPTER THIRTEENTH. 

OF THE ENGROSSMENT AND THIRD READING 858-864 

CHAPTER FOURTEENTH. 

OF THE PASSING 864 



CONTENTS. XXXIU 

CHAPTER FIFTEENTH. 

OF AMENDMENTS BETWEEN THE TWO HOUSES 865-883 

CHAPTER SIXTEENTH. 

OF THE AUTHENTICATION OF BILLS BETWEEN THE TWO HOUSES . 883-885 

CHAPTER SEVENTEENTH. 

OF COMMUNICATIONS BETWEEN THE TWO HOUSES RELATIVE TO 

THE PASSING OF BILLS 886-888 

CHAPTER EIGHTEENTH. 

OF BILLS WHICH ARE REQUIRED TO BE COMMENCED IN ONE HOUSE IN 

PREFERENCE TO THE OTHER 889-892 

CHAPTER NINETEENTH. 

OF THE RULE WHICH PRECLUDES THE SAME QUESTION FROM BEING 
A SECOND TIME PRESENTED DURING THE SAME SESSION IN ITS 
APPLICATION TO BILLS. 

Section I. Of the application of the rule in general .... 894-896 
H. Of the application of the rule, when leave has been given or 
refused, or an order made or rejected, to prepare and bring 

in a bill for a particular purpose ..... 896 

HI. Of the application of the rule whilst a bill is pending . 897 

IV. Of the application of the rule when a bill has been rejected . 898 

V. Of the application of the rule when a bill has been passed 899 
VI. Of the application of the rule to the different stages of a bill 

and to amendments 901 

CHAPTER TWENTIETH. 

OF SOME PARTICULAR PROCEEDINGS, WITH REFERENCE TO BILLS, WHICH 
ARE OUT OF THE ORDINARY COURSE. 

Section! Withdrawal 902-906 

II. Rejection 907 

III. Laying aside 908 

IV. Dropping 909 

CHAPTER TWENTY-FIRST. 

OF communications between the two houses relative to THE 

reasons OB grounds for THE PASSING OF BILLS . . . 910-914 



XXXIV CONTENTS. 

CHAPTER TWENTY-SECOND. 

OF THE ROYAL ASSENT, OR APPROVAL BY THE EXECUTIVE . . 914-925 

CHAPTER TWENTY-THIRD. 

OF SEVERAL MISCELLANEOUS MATTERS CONNECTED "WITH THE PASS- 
ING OF BILLS 926-932 



SECOND DIVISION. 

PRIVATE BILLS. 



CHAPTER FIRST 

OF THE STANDING ORDERS, AND PROCEEDINGS PECULIAR TO THE PASSING 

OF PRIVATE BILLS. 

Section I. Notices 936 

n. Parliamentary agents ^ 937 

HI. Private biU office 938 

IV. Examiners of petitions 938 

V. Standing orders committee 939 

VI. Committee of selection 939 

Vn. Chairman of the committee of ways and means ; counsel to 

Mr. Speaker; government boards 939 

Vili. Time for proceeding vnth private bills .... 940 

IX. Conducting of the proceedings 940 

X. Time for presenting petitions 941 

XL Private bUls not to be brought in, but upon petition . . 941 



CHAPTER SECOND. 

OF THE DEPOSIT, PRESENTATION, AND REFERENCE OF THE PETITION, 

AND PROCEEDINGS THEREON 942-947 



CHAPTER THIRD. 

BRINGING IN AND FIRST AND SECOND READINGS OF PRIVATE BILLS 947-949 



CONTENTS. XXXV 



CHAPTER FOURTH. 

COMMITMEJNT, AND PROCEEDINGS IN COMMITTEE. 

Section I. Of the constitution of the committees on private bills, and of 

their proceedings in unopposed bills 949-956 

n. Of the proceedings of committees on opposed bills . . 956-961 
in. Of the duties of the committee as to reporting their proceed- 

injrs 961-963 



CHAPTER FIFTH. 

OF THE report OF THE COMMITTEE, AND PROCEEDINGS THEREON; 

recommitment; third reading; passing; amendments be- 
tween THE TWO HOUSES 963-967 



CHAPTER SIXTH. 

DIFFERENCES IN THE MODES OF PROCEEDING BETWEEN THE TAVO 

HOUSES 967-973 

CHAPTER SEVENTH. 

OF PRIVATE BILLS AFTER RECEIVING THE ROYAL ASSENT; AND OF 

FEES AND COSTS 973-97J 



PART NINTH. 

IMPEACHMENT 979-989 



APPENDIX. 

I. Of the continuity and permanence of the senate of the United 

States 993 

n. Writ for the election of the members of the house of commons . 993-995 

The writ to the sheriff, on a general election ... 993 

m. Of the liability of returning officers 995 

IV. Origin of the majority principle 996 

V. Return of a writ of election 998 

Indenture of return for a county 998 



XXXVi CONTENTS. 

VI. Speaker's warrant 999 

1. Copy of the warrant issued in Duane's case. J. of S. 

ni. 60 999 

2. Copy of the warrant issued by the speaker of the house 

of commons in the case of the sheriff of ]\Iiddlesex. 

May, 72 1000 

3. Copy of summons for witnesses in the house of repre- 

sentatives of the United States .... 1000 

Vn. The speaker's prayer during the session .... 1001 

VIII. Bill passed by the miscounting of votes 1002 

IX. Taking of the yeas and nays 1003 

X. Freedom of speech and debate 1004 

XI. Extract from President Polk's message, declining to furnish 

papers 1004 

Xn. Division of a question 1005 

XIII. Appeal from the speaker's decision in the house of commons . 1006-1008 

XIV. Appointment of committees 1008 

XV. Of grand committees and committees of the whole house . . 1009-1018 

XVI. Amendments between the two houses 1019-1024 

The act for preventing occasional conformity . . 1019 

INDEX , 1027 



LAW AND PRACTICE 



ov 



LEGISLATIVE ASSEMBLIES. 



PRELIMINARY. 

1. The political science of modern times, in its analysis of the 
different functions of civU government, under whatever name or 
form they may be exercised, has arranged them all in three grand 
divisions, denominated the legislative, the executive, and the judi- 
cial. In all modern constitutional governments, each of these classes 
of functions is appropriated to a separate and distinct department, 
which is intended to be, and to a greater or less extent is, practically 
independent of either, or both of the others.^ The most important 
of these departments, both because of the nature of its functions, 
and because it is necessarily the depositary of so much of the abso- 
lute power of the people, as they see fit to intrust to their govern- 
ment, and do not confer upon other departments, is the legislative. 

2. The department of legislation, in the greater number of mod- 
ern States, and in every one of the States composing the American 
Union, as well as in the government of the Union itself, consists of 
two separate and distinct branches, possessing independent and 

1 The separation has been deemed so es- In Maine, the constitution of which contains 

sential in this country, that it has been pro- the latter provision, it has been held, on that 

vided for, in express terras, in the constitu- ground, that the ofKce of justice of the peace 

tions of many of the States; and several of is incompatible with that of sheriff, deputy 

them declare also not only that the depart- sheriff, or coroner. See Chapman v. Shaw, 

inents shall be separate, but that no person or Greenleaf 's Reports, III. 372 ; Opinion of ike 

persons, belonging to one, shall exercise any Justices, etc., Same, III. 484; and Bam/brd v. 

of the powers belonging to either of the Melvtin, Same, VII. 14. 
others, except in cases expressly permitted. 

1 (1) 



-4 LEGISLATIVE ASSEMBLIES. 

coordinate powers ; both of which must concur in every act of 
legislation ; each of which is composed of a sufficient number of 
members to give it the character of a deliberative assembly ; and 
whose concurrent acts, in matters of legislation, are (with two or 
three exceptions) subject to a negative, either absolute or qualified, 
on the part of the executive po^^er. 

3. Of these two branches in the legislatures of this country, 
though they are in fact equal in power and dignity, the one, being 
a smaller and more select body, is usually regarded as the upper 
house, and the other, consisting of a larger and less select body 
of members, as the lower. The members of the former, commonly 
called the senate, are usually required to possess certain peculiar 
qualifications, as to age and residence ; are chosen by more numer- 
ous constituencies, and sometimes by a comparatively select, that 
is, a more highly qualified body of electors ; and are not unfre- 
quently elected for longer terms of office. The members of the 
latter, variously kno-^Ti as representatives, burgesses, commons, or 
delegates, are chosen by smaller constituencies ; sometimes, by a 
more popular suffirage, that is, by electors of less quaHfications ; and 
often, for shorter periods of official duty. There are States, how- 
ever, in which the qualifications of the electors, the term of office, 
and the conditions of ehgibifity, are precisely the same, in reference 
to both branches. 

4. The fmictions of the upper and lower houses, though abso- 
lutely the same in matters of legislation, (with certain exceptions 
which ^\'iR be adverted to hereafter,) are, in some of the States 
of the Union, essentially difierent in certain respects, in "which 
their powers have been specially enlarged or restricted by the fun- 
damental law ; the former, for example, sometimes exercising the 
functions of an executive council, as in the federal government, or 
of a judicial tribunal, in the last resort, as formerly in the State of 
New York ; and the latter, (not unfi-equently, however, in conjunc- 
tion -udth the other,) sometimes electing or appointing to office, 
either in the first instance, or, in the case of a failure to elect, on 
the part of electors, v'hose duty it is, in the first instance, to make 
certain elections. There is one matter, however, wdthin the usual 
and ordinary powers of the t^\"o branches, in reference to which 
their functions are essentially difierent, namely, the impeachment 
and trial of public officers for official misconduct, in which the of- 
fender is impeached or accused by the lower house, and tried and 
sentenced by the upper. 

5. From a general view of some of the characteristic features 



LEGISLATIVE ASSEMBLIES. 3 

of the legislative assemblies of this country, it is manifest, that their 
original type is to be found in the parliament of Great Britain ; 
upon the model of which they have all been formed, Math such modi- 
fications and changes, as have been found necessary to adapt them 
to the various circumstances and Avants of the people. The most 
striking of these differences are, that, in this country, both branches 
are elected by the people for specified terms, and that the members 
of the lower house (and of the other also, either wholly or in part) 
are apportioned among and elected by their several constituencies, 
upon the principle of equality ; ^ whereas, in England, the house 
of lords is composed of members who are not elected at all, but 
who sit as members, during their lives, in virtue of hereditary or 
conferred right, as the nobility or temporal lords, or of their ap- 
pointment to high dignities in the church, as the archbishops and 
bishops, or lords spiritual ; and the members of the house of com- 
mons, though elected, are not apportioned among the several con- 
stituencies and elected upon the principle of equahty of represen- 
tation, but chiefly upon the principle of corporate or municipal 
right. 

6. Besides these differences between the British parhament and 
the legislative assemblies of the United States, there is another of 
not less importance, namely, that the existence and powers of the 
former rest only upon custom and tradition, aided by occasional 
statute provisions; whereas the latter are founded in, and for a 
great part regulated, limited, and controlled by, written fundamen- 
tal laws or constitutions. 

7. There is still another difference, not inferior perhaps in im- 
portance, which is, that the British parliament can only be con- 
vened at the pleasure of the sovereign, who is invested Avith full 
power both to convene and dissolve it, and is only required by law 
not to suffer a longer period than three years to elapse between the 
dissolution of one parliament and the convening of another ; while, 
in the several governments of the American Union, the meetings, 
periods of existence, and manner of dissolution, of the legislative 
assemblies, are all provided for and regulated by the fundamental 
laws. 

8. The legislative department, however carefully separated and 
kept distinct both from the executive and judicial departments, and 
though exercising cO()rdinate and independent functions, is never- 
theless by its very nature, the depositary of so much of the supreme 

■» Constitution of Massachusetts, Part 11. Chap. I. Sect. III. 



4 LEGISLATIVE ASSEMBLIES. 

and absolute power as the people see fit to embody in their form 
of government ; for, whilst the functions of the executive and the 
judiciary are precisely marked out by fixed la'\;\^s antecedently 
enacted, and, from the nature of those powers, do not admit of 
any enlargement or extension by their 0"wn act, the legislative 
department may control, regulate, and limit the executive and the 
judiciary, by general prospective provisions of law, and may also 
act on every emergency, not otherwise previously provided for, 
(whether it require executive, legislative, or judicial interference,) in 
virtue of the supreme legislative power with which it is intrusted. 

9. In this country, there are three kinds of legislative assemblies, 
namely, first, those of the several States ; second, that of the United 
States ; and thu'd, those of territories not yet formed into States. 
The legislatures of the States are chosen directly by the people 
thereof, and are the depositaries of their exclusive, original, sovereign 
power. They possess aU the legislative authority which can be 
exercised within then- respective jurisdictions, except so far as they 
are restrained therefrom by constitutional enactment, either express 
or implied in their own constitutions or in that of the United States. 
These are equal in number, of coiu-se, to the several States. The 
legislative assembly of the Union denominated the Congi'ess of the 
United States, is one of derivative and limited powers, exercising 
only those functions AAdth which it is invested, for the general wel- 
fare, and the benefit of all the States, either expressly, or by neces- 
sary implication. One of its branches, the upper, is chosen by the 
legislatures of the States ; its existence is continued and perpetual ; ^ 
the other branch is chosen directly by the people of the respective 
States.^ The Congress of the United States also exercises exclu- 
sive legislation, in all cases whatsoever, within the District of 
Columbia, and over aU places purchased by the government of the 
United States, with the consent of the States in which the same 
are situated, for arsenals and other public "w^orks of a lilve character. 
The only remaining class of legislative assemblies in this country 
consists of those of territories subject to the dominion of the United 
States and not yet formed into States. These are created by and 
depend whoUy for their existence upon acts of Congress. Teni* 
torial governments, according to their importance, generally, have 

1 Appendix, I. delegates are entitled to seats, as siicli, after 

2 Senators and representatives are entitled the erection of the territory, for which they 
to seats, even though their election as such sei-ve, into a State, so long, at least, as any 
took place before the admission of their State part of their original constituency remains, 
into the Union, (Cong. Globe, IV. 134); and (Case of Paul Fearing, Clarke & HaU, 127.) 



LEGISLATIVE ASSEMBLIES. 

a legislature consisting either of a single branch appointed by the 
president, or one consisting of two branches, the most numerous of 
which is chosen by the people. These governments are, of course, 
merely temporary. The distinguishing character of territorial legis- 
latures is that all their acts are subject to the approval or disap- 
proval of Congress. These governments differ also, in another 
respect, from those of the States ; they are not represented at all in 
the senate of the United States ; and in the other branch only by 
delegates, who have no right of voting therein. 

10. The legislative assemblies of Canada, and of other colonies 
and provinces of Great Britain, which appear to be formed and con- 
ducted, even more closely than our own, upon the model of the 
British parliament, and occasional assemblies, which are not legis- 
lative in their character, though they exercise analogous functions, 
such as constitutional conventions and the like, are not, except so 
far as they are governed by the common parliamentary law, em- 
braced within the plan of this work. 

11. The laws relating to the election and constitution of these 
legislative bodies ; the rules by which they are governed and regu- 
lated ; and the forms and methods in which their proceedings are 
conducted, constitute a peculiar branch of jurisprudence ; which, 
from having been first treated of with reference to the parliament 
of Great Britain, is denominated parliamentary law, or the law of 
parliament. 

12. In considering the various topics embraced under the head 
of parliamentary law, it will be convenient to arrange them in the 
following order : — First, Of the Election of the Members of a 
Legislative Assembly; Second, Of its Constitution; Third, Of the 
Privileges and Incidental Powers of such a body ; Fourth, Of its 
General Powers and Functions; Fifth, Of the Communications 
which take place between the different Branches, and between them or 
either of them, and the Executive, other official bodies or persons, 
individuals, or the public in general ; Sixth, Of the Forms and 
Methods of Proceeding ; Seventh, Of Committees and their Func- 
tions ; Eighth, Of the Passing of Bills ; Ninth, Of Impeachment. 

1* 



LAW AND PRACTICE 



LEGISLATIYE ASSEMBLIES. 



PART FIEST. 

OF THE ELECTION OF THE MEMBERS. 



LAW AND PRACTICE 



OF 



LEGISLATIVE ASSEMBLIES. 



PART FIEST. 

OF THE ELECTION OF THE MEMBERS. 



13. Inr this part, will be considered : — First, Constituencie& ; 
Second, the Persons competent to be Electors ; Third, the Persons 
competent to be Elected ; Fourth, the Mode of Election ; Fifth, the 
Return of the Persons Elected; and, Sixth, Controverted Returns 
and Elections. 



CHAPTER FIRST. 

OF CONSTITUENCIES. 

14. The fundamental idea of a representative government is, 
that a large number of persons select from themselves a smaller 
number, .or, it may be, a single person, to represent and act for 
them, in the performance of those functions which constitute gov- 
ernment. It is immaterial, in this respect, whether the whole body 
of the electors act together in the selection, or whether they act by 
divisions, each of which elects its proportion of the delegated body ; 
and, where the electors are divided into separate bodies, for this 

'9) 



10 LEGISLATIVE ASSEMBLIES, [PaKT L 

purpose, it is immaterial whether the division is by classes, or 
orders, as of the different trades or professions, or by means of local 
and territorial boundaries ; inasmuch, as in all these forms, the 
essential principle of representation is attained and secured. In 
this country, the first and the last are the only forms in use ; the 
former, with one or two exceptions, in the election of the chief 
executive magistrates of the several States, and the latter in the 
election of the members of the legislative assemblies. 

15. For the purpose, among others, of electing the members of 
legislative assemblies, the States are respectively divided and sub- 
divided into counties, towns, cities, districts ; each of which, for 
the purposes for which such division or subdivision takes place, 
constitutes a municipal corporation or body politic. In some of 
the States, the smaller divisions, towns and cities, for example, 
elect each of them one or more of the members of the popular 
branch of the legislature ; in others, these smaller corporations are 
united, two or more of them together, into districts, for the same 
purpose ; whUe, in all the States, the members of the more select 
or senatorial branch are elected, either by counties, each of which 
comprises several smaller subdivisions of cities or towns, or by dis- 
tricts composed of several counties. 

16. These different kinds of constituencies have given rise to 
two different modes of proceeding in making and determining elec- 
tions, and authenticating the right of membership, or, in other 
words, of returning the members elected. The return of a member, 
as the term is used in this country in a popular sense, denotes the 
election merely, as when it is said, that such a person is returned, 
that is, elected, a member ; but in its proper and technical sense, 
it denotes the instrument by which the election is authenticated, or 
certified jfrom the constituent to the representative body. Where 
aU the electors of a constituency assemble together in one place, 
and give in their votes to one set of municipal officers, such officers 
act ministerially in receiving the votes, and also judicially in deter- 
mining the result of the election ; but where the electors assemble 
in different places, and give in their votes to as many different sets 
of municipal officers, the latter for the most part act merely in a 
ministerial capacity, in receiving the votes and transmitting certifi- 
cates or records of them to a central board of officers, to whom the 
judicial functions of determining the election and returning the 
members elected are delegated.^ 

1 Biddle and another v. Wing, Clarke & Hall, whicli are in question, it is clear, that they so 
504. Where receiving officers exercise their far act judicially, 
judgment, in receiving or rejecting votes, 



Chap. L] constituencies. 11 

17. Whether, however, the electors vote by districts composed 
of several smaller municipal bodies, or those of the same constitu- 
ency vote together, the meetings for the purpose are held in the 
same manner, governed by the same rules, and conducted by the 
same officers ; the only difference being, as already observed, that, 
in the first case, the votes are received by one set of officers, and 
the election determined by another ; whereas, in the second case, 
both these functions are performed by the same officers. 

18. The constituencies above described are those into which each 
State and territory is divided, for the choice of the members of the 
local legislatures ; those which relate to the election of the members 
of Congress, or the legislature of the Union, remain to be briefly 
noticed. In this respect, the Congress of the United States is 
peculiar ; the population and territory, of which its constituencies 
are composed, being already represented, for the general purposes 
of government, in their local legislatures. 

19. The number of the members of which the house of repre- 
sentatives is from time to time to consist, according to the constitu- 
tion, being first determined by Congress, and apportioned among tlie 
several States, two methods have been practised in their election, 
namely, they have been chosen by general ticket, as it is called, or 
by the district system. According to the former, the qualified 
voters of each State elect, at one election, and on one ballot, the 
whole number of members to which such State is entitled. Ac- 
cording to the latter method, the States are divided by their own 
legislatures into suitable territorial districts, each of which is 
entitled to elect one member. Where a State is only entitled 
to one member, these two systems are, in effect, the same. 
Sometimes, where a territorial division cannot conveniently be 
made, a district is double ; or in other words, is large enough to be 
allowed to elect two members instead of one. In these districts, 
the election of members of Congress is conducted in the same man- 
ner, and by the same officers, as other elections. 

20. The immediate constituents, that is, the elective power, of 
the senate of the United States, are the several States themselves, 
in their aggregate or municipal capacity ; the constitution providing 
that the senate of the United States shall be composed of two 
senators from each State, chosen by the legislature thereof. 

21. It would seem to be clear, from this language, that the 
requisition of the constitution of the United States, in regard to the 
election of the senate, w^ould not be complied with, unless its mem- 
bers were elected by the legislatures of the several States, by legis- 



12 LEGISLATIVE ASSEMBLIES. [PaUT I. 

lative acts, that is, in the same way that laws are passed by the 
concurrent act of the two branches, approved by the executive. 
But the practice has so long prevailed, and been silently acquiesced 
in by the senate, of electing its members by joint ballot of the two 
branches of a State legislature, in which the members constitute 
one aggregate body, and in which the less numerous branch is 
dissipated and lost in the larger, that it is perhaps too late now to 
caU in question this latter mode. Still, as it is not competent for 
the members of a legislative assembly to do any ordinary act of 
legislation, by a proceeding in joint baUot, an election, effected by 
the members of a legislative assembly in that manner, cannot prop- 
erly be said to be a choice by the legislature.^ 



CHAPTER SECOND 

OF THE PEESONS COMPETENT TO BE ELECTOES. 

22. The right of suffiage is regulated in part by what may be 
called the common political law, but chiefly, by the constitutions 
and laws of the several States. The federal constitution contains 
no provisions of its own touching the qualifications of electors of 
representatives, but adopts those of the several States ; declaring 
that the electors in each State, to offices under the constitution of 
the United- States, shall have the qualifications requisite for electors 
of the most numerous branch of the legislature of such State. 

1 Chancellor Kent had already expressed of the senate is dissipated and lost in the more 
his doubts on this subject: — "There were numerous vote of the assembly. This con- 
difficulties, some years ago, as to the true struction has become too convenient, and has 
construction of the constitution in the choice been too long settled by the recognition of 
of senators. They were to be chosen by the senators so elected, to be now disturbed ; 
legislature, and the legislature was to pre- thoiigh I should think, if the question was a 
scribe the times, places, and manner, of hold- new one, that when the constitution directed 
ino- elections for senators, and congress are that the senators should be chosen bjj the legis- 
authorized to malse and alter such regulation, lature, it meant not the members of the legis- 
except as to the place. As the legislature lature ]}er capita, but the legislature in the 
may prescribe the manner, it has been con- true technical sense, being the two houses act-- 
sidered and settled, in New York, that the ing in their separate and organized capacities, 
feodslature may prescribe that they shall be with the ordinary constitutional right of nega- 
chosen by joint vote or ballot of the two tive on each other's proceedings." Kent's 
houses, in case the two houses cannot sepa- Commentaries, I. 225. 
rately conciir in a choice, and then the weight 



Chap, ti.] persons competent to be electors. 13 

23. The exercise of this right lying, as it does, at the foundation 
of all free institutions of government; it is provided, in express 
terms, in many of the State constitutions, that electors shall, in all 
cases except treason, felony, or breach of the peace, be privileged 
from arrest, on the days of election, during their attendance at, 
going to, and returning therefrom ; and that no elector shall be 
obliged to do duty in the militia on any day of election, except in 
time of war or public danger. These provisions are both found in 
the constitutions of Maine, Virginia, Illinois, Michigan, Iowa, and 
California ; the former only in those of Connecticut, Pennsylvania, 
Delaware, Alabama, Mississippi, Tennessee, Louisiana, Kentucky, 
Ohio, Indiana, Missouri, Arkansas, and Texas ; and in almost all 
the States though bribery is an offence at common law, there are 
constitutional provisions or laws, to secure the freedom and purity 
of elections. 

24. By the common political law of England and of this country, 
when not otherwise specified in a particular State, by its constitu- 
tion or laws, certain descriptions of persons are deemed to be ex- 
cluded from exercising the right of political suffrage, even though 
not prohibited therefrom by any express constitutional or legal pro- 
vision. The persons thus excluded are minors, idiots and lunatics, 
women, and aliens. With these exceptions, all persons, possessing 
the qualifications required, and not subject to any of the disabilities 
specified, by the constitution or laws of the States, in which they 
live, may vote at aU elections therein. In considering the subject 
of the right of suffrage, therefore, it will be convenient, first, to 
notice briefly the general exceptions aUuded to ; second, to enumer- 
ate the qualifications required, and, third, the disabilities pro- 
nounced, by the constitution and laws of the several States. It 
must be recollected, however, that the persons enumerated above, 
as excluded from exercising the right of suffrage by the common 
political law, if mentioned in the constitution or laws of a State, 
are, of course, governed exclusively by the provisions thereof, irre- 
spective of the common political law. 

Section I. Of Persons excluded by the Common Political 
Law from the Right of Suffrage. 

25. Infants, or persons under the age of legal majority, are ex- 
cluded from voting, on the same general ground, on which they 
are prohibited from doing any other legal act, namely, their pre- 
sumed want of capacity. The age of twenty-one is the period of 

2 



14 LEGISLATI^TE ASSEMBLIES. [PaKT I. 

majority for males, throughout the United States ; and that age 
is completed according to the common law, on the beginning 
of the day preceding the day of the anniversary of the person's 
birth.i 

26. In the constitutions of many of the States, the age necessary 
to qualify one to be an elector is mentioned ; in some, the language 
is " twenty-one years of age " or " t^^enty-one years of age and ^ 
upwards ; " in others, it is, " above the age of t^tventy-one years." 
The intention is perhaps the same in both cases ; but, according to 
a strict legal construction, the latter phraseology would exclude 
the day of arrival at fuU age, and so prevent one from voting, 
until the next day after ; whereas the former would allow him to 
vote on that day. 

27. Idiots and lunatics are also excluded from voting for the 
same general reason, — their want of capacity, — which disqualifies 
them from the doing of other legal acts : the former being perpetu- 
ally disabled, and the latter temporarily so, while in the state of 
insanity.3 In regard to lunatics, whether their malady is periodical 
or constant in its nature, there seems no reason to doubt, that then- 
right to vote, like their capacity to do other legal acts, wiR depend 
upon their mental condition at the time of the election ; and, if, at 
that time, their condition of mind is such, that a wiR or deed then 
made would be valid, or an agreement then entered into binding in 
law, their votes ought to be received. Drmikenness is regarded as 
a temporary insanity.'^ 

28. Several of the State constitutions contain express provisions 
relating to this subject. By those of Delaware, Ohio, and New 
Jersey, it is provided, that " no idiot or insane person shall enjoy the 
right of an elector;" the constitution of Virginia declares, that, 
" the right of sui&age shall not be exercised by any person of un- 
sound mind ; " and by those of Rhode Island, JMaryland, and Wis- 
consin, "lunatics and persons non compotes mentis are excluded from 
the right of sui&age." In cases of constitutional or legal prohibition 
to exercise the right of suf&age by these persons, it is presumed, 
that the principle stated in the preceding paragraph is equally 
applicable. 

29. The rule of exclusion from the right of suffirage, on the 

1 Kent's Commentaries, n. 232 ; Rogers on ^ Qlehampton, Fraser, I. 162, 164; Bridge- 

Elections, 86. water, Peckwell, I. 109; Bedford, Perry & 

^ The -word " or " is sometimes used in- Knapp, I. 129. 

stead of "and." The difference is not mate- * Wigan, Falconer & Fitzherbert, 695; Mon- 

rial. mouth, Knapp & Ambler. 413. 



Chap. IL] persons competent to be ELEcroRS. 15 

ground of want of capacity, refers only to defects of mind, and not 
to those which are merely physical, or of the bodily organs and 
senses ; consequently, no mere bodily defect, as of one or more of 
the senses, or physical infirmity, as from sickness or other cause, is 
sufficient to preclude one from the right of suffrage, though it may 
prevent him from exercising that right; and it has accordingly 
been held, that a deaf and dumb person,^ if possessed of such a 
nieasure of intelligence, as to understand the nature of the right to 
vote, and to be competent to take the oath requu-ed by law, (if any), 
is entitled to his right of suffrage, and may give his vote, either 
orally or by ballot, through the instrumentality of some person, who 
is accustomed to interpret his signs.^ 

30. If the exclusion of females from the right of suffrage was 
limited to married women, whose " legal existence and authority 
are, in a degree, lost or suspended, during the continuance of the 
matrimonial union," ^ as a consequence of the principle of the com- 
mon law, by which husband and wife are regarded as one person, 
the reason of the exclusion would probably be found in a supposed 
subjection to the authority of their husbands ; but, as unmarried 
women of full age, and competent to perform other legal acts, are 
equally excluded from voting, the reason must be more comprehen- 
sive than any supposed marital restraint. The ground assigned by 
the philosophic historian Guizot, — that women, being destined by 
the law of their sex for a state of existence pvirely domestic, are 
therefore incapable of deciding upon those interests, which are in- 
volved in questions of political suffi-age, — probably embodies the 
sense of mankind on this subject.^ 

31. In th^ constitutions of all the States, except that of Georgia, 
women are impliedly excluded from the right of suffrage by the use 
of descriptive words, in the affirmative, which restrict it to persons 
of the male sex ; but, in none of them, are women expressly excluded 
by negative words. By the constitution of Georgia, " citizens and 
inhabitants," possessing the other requisite qualifications, are en- 
titled to vote.^ The disability of women to vote, it must be recol- 



- The constitutions of Virginia and Ken- length, in Lieber's Political Ethics, Part II. 

tucky provide, that in all elections, the votes Book IV. Chap. I. 269, 270. 
shall be given openly, and not by ballot, but ^ gi^it though women cannot vote, instances 

that dumb persons, entitled to suffrage, may have occurred in England, in which they have 

vote by ballot. taken a part in elections, and have actually 

' Rogws on Elections, 87, 88; Letcher v. in person, or by attorney, made or joined in 

Moore, Clarke & Hall, 757. making the return. The return from Gattou, 

3 Kent's Commentaries, II. 129. in 1628, was made by Mrs. Capley, et omnet 

* See the remarks of Guizot quoted at inhabitantes, (Carew, I. 245). In the 14th of 



16 LEGISLATIVE ASSEMBLIES. [PaRT 1. 

lected, applies only to municipal proceedings ; in moneyed and 
other corporations not municipal, in which they are shareholders, 
women vote like any other proprietors. 

32. The only remaining description of persons, who are excluded 
from the right of suf&age, is that of ahens; who, being persons born 
without the territorial boundaries of the United States, and there- 
fore presumed to be the subjects or citizens of some other govern- 
ment, are not supposed to possess such a knowledge of our institu- 
tions, or to be so exclusively attached to them, as to render it safe 
or proper that they should be intrusted with any portion of the 
political power ; and this principle is so essential and fundamental, 
that no constitutional or legal provision is necessary to exclude 
aliens from voting; but they are considered as so excluded, by the 
common poHtical law already alluded to, unless the right of suffrage 
is expressly conferred upon them by the constitution or laws of the 
State in which they live.^ When aliens become naturalized, they 
acquire, with some exceptions, all the poHtical rights, which belong 
to natural born citizens. Li several of the State constitutions, citi- 
zenship is inserted expressly, as a descriptive qualification ; in 
others it is only inferrible from the use of equivalent terms. 

Section" II. Of the Constitutional Qualifications requisite 
FOR THE Exercise of the' Right of Suffrage. 

33. In the constitutions of the several States, there are numerous 
and various qualifications expressly prescribed ; the possession of 
one or more of which is made essential to entitle a person to be an 
elector. The following is an enumeration of the qualifications thus 
prescribed, namely: 1st, citizenship; 2d, freedom; 3d, residence for 
a certain specified period ; 4th, possession of a certain amount oi 
description of property ; 5th, payment of a tax ; 6th, taking a pre- 
scribed oath; 7th, settlement within the State; 8th, performance 

Elizabeth, the return from Aylesbury was kind has probably occuiTed since the revolu- 

made by Dame Dorothy Packington, describ- tion ; and the only way in which women have 

ing herself as widow, late wife, of Sir John interfered in elections in modem times has 

Packington, knight, lord and owner of the been by bringing their personal influence into 

town of Aylesbury; declaring that she had the canvass. By the old constitution of New 

chosen, named, and appointed Thomas Litch- Jersey, adopted in 1776, " all inhabitants," pos- 

field and George Harden, Esquires, to be her sessed of certain qualifications therein requir- 

burgesses of her said town of Aylesbury ; and, ed as to property, were allowed to exercise 

notifying and approving to be her own act the right of suffrage. Under this constitution, 

whatsoever the said burgesses shoiild do in it is said, that women were formerly accus- 

the service of the queen in parUament, as fully tomed to vote. 

and wholly as if she might be present there in ^ Mass. Reports, VH. 523; Gushing, Story 

■person. (Male, 242, note.) No case of this & Jossevln's Reports, 119. 



Chap. II.] persons competent to be electors. 17 

of military duty ; 9th, labor on the highways ; 10th, to be a house- 
keeper, or head of a family ; 11th, to be quiet and peaceable ; and 
12th, to be of a good moral character. It is proposed to notice, 
very briefly, some of the most important of these various qualifica- 
tions, indicating, at the same time, the States in whose constitutions 
they are resoectively found. 

1. Citizenship. 

34. In all the constitutions, citizenship is required as a qualifica- 
tion for the exercise of the right of suffrage ; in some generally ; in 
others, that of the particular State ; and in others again, citizenship 
of the United States. But these terms are immaterial, inasmuch, 
as by the constitution of the United States, congress is authorized 
to establish a uniform rule of naturalization ; and the citizens of 
each State are entitled to all the privileges of citizens in the several 
States. The constitutions of Indiana, Wisconsin, and Michigan, 
dispense with this requisition in part, in favor of persons of foreign 
birth, who have declared their intention to become citizens of the 
United States, conformably to the laws thereof. 

2. Freedom. 

35. In the constitutions of Vermont and Connecticut, the word 
"freeman" occurs, as descriptive of a qualification to vote ; in these 
cases, the term refers only to a person who is a member or " jQree " 
of the State, regarded as a municipal corporation. In the consti- 
tutions of other States, in which the word is found, it merely means 
one who is not a slave; in this latter sense, it is wholly super- 
fluous. 

3. Residence. 

36. By the constitutions of all the States, residence within the 
State for a certain period, and, for a portion of that period, within 
the particular county,^ district, city, or town, in which one proposes 
to vote, is prescribed as a requisite to the exercise of the right of 
suffrage. In describing this qualification, the terms used are differ- 
ent, in different constitutions ; being, in some of them, " inhabit- 
ant," — in some, "resident," and, in others, "citizen," of the State 
or county ; all of which, however, may be regarded as nearly equiva- 
lent to the legal term " domicil," ^ or, as it is defined in the con- 
stitution of Massachusetts, the place " where one dweUeth or hath 
his home." ^ 

1 See Kelly v. Harris, Clarke & Hall, 260. ' Constitution of Massachusetts, >hap. I., 

2 Metcalf s Eeports, I. 245. sect. 2, article 2. 

2* 



18 LEGISLATIVE ASSEMBLIES. [PaRT 1. 

37. In the constitutions of Maine, Rhode Island, New Jersey, 
New York, Virginia, Indiana, Illinois, Arkansas, Texas, Iowa, 
Ohio, Florida, Missouri, Wisconsin, Alabama, and Delaware, it 
has been thought expedient to provide, that persons in the military, 
naval, or marine service of the United States (and in Maine the 
provision is extended to persons in the service of that State) shaU 
not be considered as resident in those States, so as to entitle them 
to vote therein, by reason of being stationed in any garrison, bar- 
rack, or military place, within their limits.^ But, this provision, 
according to the general principles of the law of domicil, must be 
whoUy unnecessary, at least, in aU cases, where such military sta- 
tion belongs or has been ceded to the United States, with the usual 
concomitants of exclusive jurisdiction.^ 

38. The constitutions of New York, Maine, and California, also 
provide, that the residence of a student at any seminary of learning 
shall not entitle him to the right of suf&age in the town where 
such seminary is established. The question thus settled, being one 
of frequent occurrence, and not without difficulty, as depending on 
the law of domicil ; — it cannot be deemed superfluous to settle it 
by an express provision. The constitutions of the two last-named 
States make a further exception, as to residence, of persons kept 
at any almshouse or other asylum, at public expense, and of 
persons confined in any public prison. 

39. The constitution of Mississippi contains a provision, (and a 
similar one is found in that of Texas,) that where an elector hap- 
pens to be in any county, city, or town, other than that in which 
he resides, or to have removed thereto within four months preced- 
ing an election, he may vote therein for any public officer, for whom 
he might have voted, if he had remained at home, or had not 
removed his residence. 

40. The constitution of Georgia, after providing for a residence 
in the county, where one claims a right to vote, dispenses with it 
altogether in case of invasion ; in which case, it declares, that if 
the inhabitants of a county are driven therefrom, so as to prevent 
an election therein, such inhabitants being a majority of the voters 
of such county, may proceed to an election in the nearest county 
not in a state of alarm. This kind of qualification being required 
in almost every State, in some form or other, it will be useful to 
suggest some of the rules which are applicable to it. 

1 See Biddle and another v. Wing, Clarke & ^ Opinion of the Justices, ^c. Gushing, & 
Hall, 504, 612. and J., 416. 



Chap. IL] peesons competent to be electoks. 19 

41. In the first place, the residence must be next preceding the 
election ; so that, if a voter, regularly qualified in point of resi- 
dence, removes from the place of his domicil, and becomes an 
inhabitant of some other place, and afterwards returns to the 
former, he will not be entitled to resume his right of suffrage there, 
on the strength of his previous residence ; but he must again 
acquire the right by renewing and continuing his residence for 
the requisite period. By the constitution of Pennsylvania, the 
period of residence otherwise required is shortened, in the case 
of a qualified voter who removes from the State and returns. 

42. Secondly, the moment a voter changes his residence, and 
acquires a new domicil, he loses his right to vote in the former, 
because he no longer resides there ; but he does not acquire a right 
to vote in the latter, until he has resided there the requisite length 
of time ; the popular notion that a man, having once become a 
voter, must always afterwards have a right to vote somewhere, and 
consequently, that he retains a right to vote in one place until he 
acquires it in another, is wholly unfounded. This principle of po- 
litical common law, which is the necessary result of the law of 
domicil, applied to the constitutional requisition of residence, is 
controlled by the constitutions of Maryland, Louisiana, and Mis- 
souri, which declare, expressly, that a voter, removing from one 
voting district to another, shall not lose his right to vote in the 
former, until he has acquired a right to vote in the latter. 

43. Thirdly, it is perhaps scarcely necessary to observe, that the 
time of residence requisite to qualify an elector will run on and be 
attained, notwdthstanding that during the whole or a portion of 
the same time, he may be otherwise disqualified ; as, for example, 
in the case of a minor, or alien, or of one disqualified by the non- 
payment of a tax, or the want of the requisite property qualifica- 
tion. It Avould be otherwise, of course, if residence coexistent with 
some other form of qualification, was required.^ 



1 The constitution of Massachusetts pre- Harvard College v. Gore, Pick. V. 370, 375, 

Bcribes that every member of the house shall, that the term " inhabitant " in the constitu- 

for one year, at least, next preceding his elec- tion and laws of Massachusetts implied " citi- 

tion, have been an inhabitant of the town zenship," reported against the validity of the 

from which he shall be chosen. In the case election. No question, was taken on the re- 

oi Maiden, Gushing, S. and J., 377, the sitting port, except to recommit it; the house ap- 

member, who was an alien born at the time parently agreeing to the report, but the 

of his election, had resided in Maiden for more member resigned his seat, and no discussion 

than a year, but had been naturalized only took place. On the contrary in the case of 

a few weeks. The committee on elections, BicMle v. Rkhards, in which the election of 

on the strength of the decision of the Supreme the delegate from Michigan to the house 

Judicial Court of the State, in the case of of representatives in congress was centre- 



20 LEGISLATIVE ASSEMBLIES. [PaRT L 

4. Property. 

44. In five of the States, Connecticut, New York, (as to men 
of color only,) Rhode Island, and North and Sonth Carolina, is the 
property qualification, in its direct form, still requisite ; many of 
those of the older States, in which it was formerly required, having 
since abolished it, and the newer States, (those admitted into the 
Union since the year 1800,) with some exceptions, never having 
made it a qualification. 

5. Payment of a Tax. 

45. This form of the property qualification, if it may be termed 
such, is retained in several of the States, namely, Massachusetts, 
Connecticut, New York, (as to persons of color,) Pennsylvania, 
Rhode Island, Delaware, North Carolina, South Carolina, and 
Georgia ; but, in Massachusetts, persons legally exempt from taxa- 
tion are placed upon the same footing ^^^.th those who have paid 
their taxes ; and in Georgia, the condition is the payment of aU 
taxes which may have been required of the elector, or which he 
may have had an opportonity of paying. 

6 to 12. Other Qualifications. 

46. The other qualifications, T\^hich have been enumerated, do 
not seem to require any particular notice.^ In Vermont and Con- 
necticut, an oath is required ; in the latter a legal settlement 
within the State ; in Rhode Island, Florida, and Connecticut, in 
certain cases, the performance of military dut}'', or legal exemption 
therefrom ; in Virginia an elector must formerly have been a 
housekeeper or head of a family ; ^ and in Connecticut, of a good 
moral character. 

Sectio:^' III. — Of Disqualifications for the Exercise of the 
Right of Suffrage. 

47. Besides the negative disqualifications resulting firom the 
want of the required quafifications, certain descriptions of persons, 
although otherwise qualified, are expressly disqualified by the con- 
stitutions of some one or more of the States, namely : 1, paupers ; 

verted on the ground above mentioned, the ^ These provisions exist in so great number 

house held that the laws of Michigan, which and variety, in the constitutions and laws of 

required residence for a year, and citizenship, the several States, that a few only of the mc«t 

as a qualification for office, were complied prominent can be adverted to, in this treatise, 

vrith by residence for a year, and citizenship 2 gge Draper y. Johnston, Clarke & HaU, 702. 
at the time of the election. Clai-ke & Hall, 407. 



Chap. IL] persons competent to be electors. 21 

2, persons under guardianship; 3, Indians not taxed; 4, persons 
excused from taxation at their own request ; 5, persons convicted 
of certain crimes ; 6, persons of color ; and, 7, persons in the mili- 
tary, naval, or marine service of the United States. A brief notice 
of some of the principal of these disqualifications wUl suffice. 

1. Paupers. 

48. Paupers, in consequence of their dependency of situation, 
and want of the common necessaries of life, which render it im- 
probable that they will exercise a free choice,^ are expressly dis- 
qualified from voting by the constitutions of Maine, Massachusetts, 
New Hampshire, New Jersey, Delaware, Rhode Island, and Vir- 
ginia. The term " pauper," in the precise and technical meaning, 
which it has acquired in this country, is understood to designate a 
person, who, either upon his own request, or otherwise, receives aid 
and assistance for himself, or his family, from the public provision 
made by law for the support and maintenance of the poor.^ 

49. In England, the receiving of parish relief, for the ordinary 
support and maintenance, either in whole or in part, of the voter or 
his family, within a year, previous to the election, is held to be a 
disqualification ; ^ in this country, the situation of the voter, at the 
time of the election only, or at the time of taking the prehminary 
steps, if any are requisite, to the exercise of the right of suffrage, 
would probably be regarded ; and it seems immaterial, whether the 
support is wholly or only in part derived from the public provision 
made for the poor; the reason of the disquahfication being equally 
applicable in both cases. 

5. Persons convicted of certain Crimes, 

50. Convictions of certain crimes furnishes so obvious a ground 
of disqualification, both as a punishment for crime, and as con- 
ducing to the purity of elections, that it is expressly inserted as 
such, for the crimes therein respectively enumerated, in the con- 
stitutions of Rhode Island, Connecticut, New Jersey, Delaware, 
Virginia, Maryland, Louisiana, Wisconsin, and California. In the 
constitutions of New Jersey and Delaware, it is further provided, 
and in those of New York, Florida, Tennessee, and Indiana, it is 
declared, that laws may be paased disqualifying persons convicted 

1 Male on Elections, 290. * Male on Elections, 290. 

3 Stwbridge v. Holland, Pickering's Re- 
ports, II. 459. 



22 LEGISLATIVE ASSEMBLIES. [PaET L 

of crimes, from exercising the right of suffrage. Tnis disquaiifica* 
tion, like other consequences of conviction, vi^ould probably be held 
to be removed by the exercise of the ordinary pardoning power 
but the disqualification is to continue, by the -constitution of 
Rhode Island, until the party is expressly restored to his right of 
suffrage by an act of the general assembly ; by that of New 
Jersey unless he is pardoned and restored by law to the right 
of suffrage, and by that of Wisconsin restored to civil rights. 

51. The conviction mentioned in the preceding paragi-aph must 
undoubtedly have taken place before the tribunals of the State, in 
which the convict claims a right to vote, according to the laws of 
such State ; but by the constitution of Missouri the disqualifica- 
tion is also extended to persons convicted of any felonious or 
infamous crime in any foreign country or any State in the Union, 
or who are become fugitives from justice, on account of the com- 
mission of such crime ; provided it be not one of a political nature, 
or one which would not be considered felonious or infamous in 
Missouri. 

52. In England, it seems, that conviction of any crime denomi- 
nated a felony disqualifies, by the common law of parfiament ; ^ 
but, in this country, where the word felony has a much greater 
extent and variety of meaning, such a conviction would not proba- 
bly be held a disqualification, unless expressly so provided by con- 
stitution or law ; ^ still, in the case of conviction for any offence, 
which subjects the offender to confinement as a punishment, he 
would, of course, in the mean time, while such imprisonment lasted, 
be precluded from exercising the right of suffrage as effectually as 
if he was thereby disqualified. 

6. Persons of color. 

53. The constitutions of Connecticut, New Jersey, Delaware, 
Maryland, Pennsylvania, Virginia, South Carolina, Tennessee, In- 
diana, Louisiana,. Mississippi, lUinois, Missouri, Ohio, Florida, 
Kentucky, Michigan, Arkansas, Iowa, Wisconsin, California, and 
Alabama, among the terms which they respectively use to describe 
the qualifications of electors, employ the "word " "white ; " while the 
constitutions of New York, North Carolina, Indiana, Texas, and 
Tennessee, contain provisions, by which persons of color are vari- 
ously disqualified, in express terms. In order to present the subject 

^ Sudbury, Phillips, 181, 189. 2 xhis is the case by the constitution of 

Delaware. 



Chap. III.] persons competent to ee elected. 23 

under a single point of view, these provisions may all be enumerated 
under the head of disqualifications. In the first-mentioned States, 
therefore, persons who are not white ; — in New York, men of color, 
except under certain conditions : — in North Carolina, negroes, mu- 
lattoes, and persons of mixed blood (that is, descended from negro 
ancestors, to the fourth generation inclusive, though one ancestor 
of each generation may have been a white person) ; — in Indiana, 
negroes, and mulattoes ; in Texas, Africans and the descendants 
of Africans ; — and, in Tennessee, persons, who, by reason of their 
color or descent, are not competent witnesses in a court of justice 
against a white man ; — are disqualified from being electors. In 
other States, in some of which Indians ^ are in whole or partly dis- 
qualified, color affords no ground of disqualification. 

2, 3, 4, 7. Other Disqualifications. 

54. In Maine, Rhode Island, and Massachusetts, persons under 
guardianship for whatever cause ; — in Maine and Texas, Indians 
not taxed ; — in New Hampshire, persons excused from taxation at 
their own request ; — in Hhode Island, members of the Narraganset 
.tribe of Indians ; — and, in New Jersey, Delaware, Virginia, Florida, 
Louisiana, Indiana, lUinois, Arkansas, Texas, Iowa, Missouri, and 
Alabama, persons (sometimes the restriction applies only to those 
under the rank of ofhcers) in the naval or military service of the 
United States ; — are disqualified from being electors.^ 



CHAPTER THIRD. 

OF THE PERSONS COMPETENT TO BE ELECTED. 

55. EligibiKty to the legislative assemblies of the States or of the 
Union depends almost entirely upon constitutional provision; it 
being a general principle, that no further conditions of ehgibility can 
be required by law than are specified in the constitution under 
which it is made, but for the reasons already suggested in regard to 

1 See Btddle and another v. Wing, Clarke of the several States may have escaped no- 
& Hall, 504, 411. tice ; but those above given, which are among 

2 It is not improbable, that some of the dis- the most prominent, are, it is believed, suffi- 
|ualifications enumerated in the conBtitutions cient for the purposes of this work. 



24 LEGISLATIVE ASSEMBLIES. [PaRT L 

the competency of electors, it will be convenient to consider the 
subject of eligibility to office, first, under the head of qualifications 
and disqualifications by the common political law, second, under 
the head of the qualifications required, and, third, under that of the 
disqualifications specified, by the several State constitutions. 



SeCTIO:N" I. Oe QuALITICATIOXS AXD DlSQUALIEICATIOi^S BT THE 

Common Political Law. 

56. The same descriptions of persons, namely, minors,^ idiots 
and lunatics,^ Vv'omen,^ and aliens,^ who have already been men- 
tioned as excluded from the right of suf&age, by the common poHti- 
cal law, are also prohibited, and for the same reasons, from being 
elected to any political office whatever. Such persons, conse- 
quently, cannot be members of a legislative assembly, even in 
those States where the constitution is silent "v\"ith reference to then* 
eligibility. 

57. It may also be laid down as a general principle, founded in 
the nature of representative government, which supposes the electors 
except in particular instances to elect from among themselves, that 
no person can be elected to any office, who is not himself possessed 
of the requisite qualifications for an elector ; and, consequently, that 
whatever other and different qualifications or disqualifications may 
be specified, every person, T\"ho is voted for as a member of a legis- 
lative assembly, must at aU events possess the qualifications and 
be free from the disquahfications which attach to the character of 
an elector.5 In the States of Connecticut, New Jersey, Wisconsin, 
Louisiana, Ohio, California, and Rhode Island, the electors and 
elected are expressly put upon the same footing as to qualifications. 
In almost all the constitutions, the qualifications of members of the 
legislature are particularly specified. Where these qualifications 
are of the same nature with those required of an elector, either 
wholly or in part, the latter are of course superseded to the same 
extent ; as, for example, where residence is required as a qualifica- 
tion both to elect and be elected, but different periods of time are 
prescribed in the tv^o cases. 

58. In England, minors have fi-equently been chosen and returned 
members of the house of commons, and their election as frequently 

1 FUnishire, Peck-sveU, I. 528. See ante, * Ante, § 32. 

f 25, 26. = See the constitutions of Vermont and Mas* 

2 Ante, § 27, 28. sachusetts ; — Amer. Const. 71, 7S, 87. 
« Ante, ^ 29, 30, 81. 



Chap. IIL] persons competent to be elected. 25 

declared void. Party or caprice, however, sometimes adapted a 
different doctrine, and allowed them to sit ; till at length, the ques- 
tion was settled by a statute passed in the 7 and 8 of William IIL, 
by which minors under the age of twenty-one were declared ineligi- 
ble and their election void. Notwithstanding this statute, however, 
minors have been since occasionally returned as members of the 
house of commons, and have been permitted to sit without com- 
plaint. The great orator and statesman, Charles James Fox, was, 
it is said, under age when he first became a member of the house 
of commons ; but though he participated in the debates, he is said 
not to have voted, until after he had attained the legal age. Other 
instances of minors sitting as members have doubtless occurred, 
both in England and in this country. 

59. In England, also, there have been conflicting resolutions of 
the commons, in regard to the eligibility of persons in holy orders ; 
but for the most part, such persons have been declared incapable of 
sitting. The question was very fully considered in 1801, in the 
case of John Home Tooke, who having been returned a member 
was objected to, as being in priest's orders. A committee was 
thereupon appointed to examine the journals and records, for pre- 
cedents; and, upon their report, and a motion made, that the 
reverend John Home Tooke, " being at the time of his election in 
priest's orders, was and is incapable of sitting " as a member, the 
motion was negatived. An act of parliament was thereupon 
passed, in order to remove all doubts, by which it was declared, that 
no person, having been ordained a priest or deacon, or being a 
minister of the Church of Scotland, shall be capable of being elected 
a member of the house of commons. The reason for passing this 
statute can scarcely have been any supposed incompetency of per- 
sons in holy orders, for the performance of legislative duties ; seeing 
that the higher dignitaries of the church have an equal place among 
the hereditary legislators of the land ; but is rather to be found, in 
the fact, that a proper attendance upon their parliamentary duties 
would necessarily interfere with and prevent the discharge of those 
higher duties which belong to the solemn trust reposed in them for 
the cure of souls. In this country there are several of the States, 
as for example, Maryland, North Carolina, South Carolina, Ken- 
tucky, Missouri, and Texas, in which ministers of religion are 
excluded from the legislative function ; and, unless expressly ex- 
cluded, such persons are clearly eligible, and have frequently been 
returned as members, and have sat as such, both in the legislative 
assemblies of the States and in congress. In Massachusetts, it 

3 



26 LEGISLATIYE ASSEMBLIES. [PaET L 

was attempted, in the year 1788, but without success, to set aside 
the election of a miiiister of the gospel, as a member of the house 
of representatives, on the ground, that those who impose taxes upon 
the people ought to be those only who pay a proportion of those 
taxes, which ministers of the gospel were not then obliged to do.^ 

60. Idiots and madmen, according to the English authorities, are 
clearly ineligible, as having no judgment, and are therefore incapa- 
ble of executing the trust of a member ;2 but lunatics, that is, 
persons ^vhose insanity is subject to periodical intermissions, are 
ehgible during their lucid intervals.^ Deaf and dumb persons are 
also said to be ineligible ; * but this must be considered as doubtful, 
since the great improvements which have been made in modern 
times in the education of the deaf and dumb. Persons who are 
totally blind are not, for that reason, ineligible ; and many such per- 
sons have sat in parHament, as well as in the legislative assemblies 
of this country. 



Section IL Of Qualification's expressly required. 

61. The following are the various qualifications prescribed by the 
constitutions of the several States and of the United States, the pos- 
session of one or more of which is necessary to qualify a person for 
election as a member of a legislative assembly, namely : 1st, citizen- 
ship for a certain period ; ^ 2d, arrival at a certain age ; 3d, resi- 
dence within the State for a certain period, and, for a part thereof, 
within a particular district ; '^ 4th, the possession of a freehold, or 
other specified property of a certain value ; and, 5th, payment of a 
tax. As these qualifications have aheady been considered, in refer- 
ence to electors, it ■wdll only be necessary to call attention to one or 
tw^o particulars, haAdng reference to their application to the compe- 
tency of persons to be elected. 

62. In England, residence within the constituency to be repre- 
sented has not been for a long period deemed necessary to quahfy 
one for election to the house of commons; though an ancient 
statute (1 Henry V., c. 1 ; 23 Henry VI., c. 15,) which was not 
repealed until the 14 George III., c. 58, (1774,) required, th&.t none 
but residents in the counties, cities, and boroughs where they are 

1 Gray, Gushing, S. & J., 28. * Male on Elections, 34. 

2 WTiitelocke, I. 461. ° See Ramsay y. Smiih, Clarke & Hall, 23; 
8 Hale on Parliaments, 116; Grampound, 29 Case of Albert Gallatin, Same, 851. 

Oct. 1566; D'Ewes, 126; Rogers on Elections, « See Case of Phillip B. Key, Clarke & Hall, 
48; Male on Elections, 34. 224; and Case of John Bayley, Same, 411. 



Chap. III. persons competent to be elected. 27 

chosen, should be elected ; but this law had been long disregarded, 
and says Whitelocke, "by time and connivance to contrary prac- 
tice, is become as if it had not been made." 

63. This dispensation with the requisition of residence enables 
constituencies to select their members from any part of the king- 
dom ; in consequence of which, it frequently happens, that the 
same person is elected and returned for two or even more different 
places. When this occurs, the member makes his election, soon 
after the house assembles, for which of these places he will serve ; 
and a new election takes place for the other. But a member can 
only be thus chosen for two or more places on the occasion of a 
general election, when all the elections are going on at the same 
time and none of the persons elected are as yet returned ; for as 
soon as a member is returned, he is considered as the representative 
of the whole people, as well as of the particular constituency by 
which he is returned; and, hence, when a special election takes 
place to fill a vacancy, although the constituency may elect its 
member without regard to residence, yet a person already returned 
is not eligible. 

64. The constitution of the United States requires that repre- 
sentatives and senators should reside within the State for which 
they are chosen ; and the constitutions of the several States, except 
South Carolina, that members of the legislature should reside 
within the district or place, which they are chosen to represent. 
In South Carolina it is only necessary that members should reside 
within the State. This is the only State, it is beheved, in which 
the members of its legislative assemblies are not required to reside 
within the constituencies for which they are elected.^ 

65. The constitution of the United States having prescribed the 
qualifications requked of representatives in congress, the principal 
of which is inhabitancy within the State in which they shall 
respectively be chosen ; leaving it to the States only to prescribe the 
time, place, and manner of holding the election ; it is a general 
principle, that neither congress nor the States can impose any 
additional qualifications. It has therefore been held, in the first 
place, that it is not competent for congress to prescribe any further 
qualifications, or to pass any law which shall operate as such. 
Upon this ground, it has been decided by the house of representa- 

1 In the convention, which was called in of the most distinguished of its members were 

1853, to revise the constitution of Massachu- elected by and sat for constituenc'es, in which 

Betts, and which depended entirely upon a law they did not reside. 
of the previous year for its existence, many 



28 LEGISLATIVE ASSEMBLIES. [PaKT I. 

tives in congress, that a clause in the apportionment law of June 
25, 1842, which required that each State should first be districted 
for the purpose, and that elections should take place in the dis- 
tricts, respectively, was void, and that elections by general ticket 
therein were vahd.^ 

66. It has been decided also, upon the same principle, that it is 
not competent for any State to add to or alter them ; '•^ and, there- 
fore, where a law of the State of Maryland, by which it was 
provided, that two representatives should be chosen from a par- 
ticular district, required also that one of them should reside in one 
part of the district, and the other in another part, the requisition as 
to residence was held void by the house of representatives.^ 

67. The qualifications of an elector are, in general, referrible to 
the time when the lists of votes are prepared, or when the right of 
suffrage is to be exercised. Those of a member, which are expressed 
in a great variety of forms, sometimes relate to the time of election ; 
sometimes to that of exercising the functions of membership ; and 
are sometimes required by reason of their nature, or of some express 
provision, to continue during the whole period of membership. 

68. Where the language used is, that " no person shall be a 
representative or senator," as in the constitutions of the United 
States, Maine, and many others, " shall be entitled to a seat," or 
" shall be a member unless, &c.," as in the constitution of Missouri ; 
— in these cases, the point of time, to which the qualifications thus 
alluded to are to be referred, is that of being qualified and assum- 
ing the functions of a member. 

69. The following phrases, namely : — " any person may be 
elected," as in the constitution of Virginia ; — " no person shall be 
capable of being elected," as in those of New Hampshire and 
Vermont; — "when elected," as in the constitution of the United 
States ; — "at the time of his election," as in that of Kentucky ; — 
" no person shall be eligible to a seat in the house unless, &c.," as 
in that of South Carolina ; refer the time of the qualification, in 
connection with which they are used, to the day of the election. 

70. Where the qualification of a particular age is described by 
the terms — " attained to the age of," as in the constitutions of the 
United States, Virginia, JNIississippi, and Alabama ; — " arrived at 
the age of," as in that of Maine; — "not of the age of," as in that 

1 See Cong. Globe, XV. 30 ; Same, Xin. the districts for which they are respectively 
173,276. elected; and this requisition has hitherto been 

2 The law of Massachusetts requires that complied with. 

members of congress shall be inhabitants of ^ Barney v. 3fc Creery, Clarke & Hall, 167. 



Chap. III.] persons competent to be elected. 29 

of New Hampshire ; — " shall not have attained the age of," as in 
those of Georgia, Kentucky, Tennessee, Louisiana, Illinois, Mis- 
souri, Delaware ; the qualification is completed on the day of 
attaining the age prescribed ; but, where the expression is, " above 
the age of," as in the constitution of Maryland, the qualification is 
not complete, until the day of attaining the given age has expired. 

71. Where citizenship, residence, possession of property, or any 
other qualification is required for a certain number of years, " pre- 
ceding," or " next precedmg," or " above [so many] years next 
preceding," or " previous to " the election or some other event, the 
day of that event is to be excluded. 

72. The term " usually," in the phrase " shaU have usually 
resided," seems to be wholly unnecessary ; the qualifying force 
of it being included in the idea of residence. 

73. In several of the constitutions a clause is inserted, that 
residence shall not be effected by an absence from the State, on 
business of the State, or of the United States ; (the constitution of 
Mississippi adds, or on a visit or necessary private business ;) but 
this exception can hardly have been provided for any other reason 
than out of abundant caution ; as, by the law of nations, persons 
temporarily absent from the place of their residence, on public (or 
even private) business, do not thereby incur the loss or even suspen- 
sion of their domicil.^ 

74. In reference to electors, it seems to be immaterial, if they are 
duly qualified on the day on which they give their suffrage, whether 
they continue to be so afterwards or not. In reference to persons 
elected members of a legislative assembly, to remain in office for a 
certain time, there seems to be as much reason for requiring that 
they should continue to be duly qualified during the whole of the 
term, as that they should have possessed the requisite qualifications 
at the time of their election. But, unless there is an express pro- 
vision to that effect, it does not seem to be necessary that the 
qualifications of members should continue.^ 

75. The property qualification, though generally given up as to 
electors, still exists in some of the States, as to the persons to be 
elected. In Massachusetts, until a recent amendment of the con- 
stitution, every member of either branch was required to possess a 
certain amount of estate. But this qualification was practically of 

1 Case of John Bailey, Clarke & Hall, 44; senators) and New Hampshire, it is expressly 

Case of John Forsyth, Clarke & Hall, 497. provided, that the qualification of residence, — 

* Story on the Constitution, HI. 95. In and in North Carolina, that of property, — 

Maine, Massachusetts, Pennsylvania (as to shall continue during the term. 

3* 



30 LEGISLATIVE ASSEMBLIES. [PaUT L 

little effect, in consequence of the difficulty of proof ; it being held, 
that the burden of proof was in all cases upon those who questioned 
the member's qualification, and that no member ought to be called 
upon, in the first instance, to prove himself a qualified member, 
according to the constitution.^ In England, where a property quali- 
fication is required of members of parliament, the difficulty of 
proof is obviated, by making it the duty of every member, when he 
takes the oath, to deliver in at the same time, a declaration accom- 
panied by a specffication of his qualification as to property. With- 
out such declaration, no member is at liberty to sit or vote ; and a 
false declaration is punishable as a misdemeanor. 



Section III. — Op DiSQUALnTCATioiirs expressly declared. 

76. Besides the negative disquahfications resulting from the want 
of the requisite qualifications, the several constitutions enumerate 
many others of a positive character ; but as they are altogether too 
numerous to be examined in detail, it will be most convenient to 
consider them in two classes; first, those which result from the 
holding of an office, or from an employment or profession, the func- 
tions of which are deemed incompatible with the duties of a mem- 
ber ; and, second, those which are of a personal nature, and peculiar 
to the individual. 

77. The offices and employments, the possession or exercise of 
which disqualifies one from being chosen or acting as a member of 
a legislative assembly, are particularly enumerated in the several 
constitutions. In the constitution of the United States the only 
provision of this kind is, that no person shaU be a representative 
who shall not have attained to the age of twenty-five years, and 
been seven years a citizen of the United States, and who shall not 
when elected be an inhabitant of that State in which he shall be 
chosen. The State constitutions enumerate, sometimes in much 
detail, three classes of official persons whom they interdict, in some 
form or other, from legislative functions, namely, all persons exer- 
cising or possessing offices under the authority of the United States, 
and aU persons connected with the executive or judicial department 
of the government of each particular State. In England, persons 
connected with the administration of the executive branch of the 
government always have seats in one or the other of the houses of 

1 Pembrohe, Gushing, S. & J., 22, note. 



CUAP. III.] PERSONS COMPETENT TO BE ELECTED. 31 

parliament; in this country, such persons are carefully excluded 
from legislative functions. This difference between the constitution 
of parliament and that of the legislative assemblies of this country 
has led to important differences in the parliamentary practice of the 
two countries, to which allusion will be made in another place. 

1. Disqualifying Offices or Employments. 

78. Disqualifications of this kind result from the holding of cer- 
tain offices, or from the exercising of certain employments, commis- 
sions, and professions, the functions of which are deemed incom- 
patible with the proper discharge of the duties of a member, but of 
which one may divest himself at pleasure, and Avhich are therefore 
relative rather than absolute. In general, as these disqualifications 
are not derived from the personal character of the individual, or 
inflicted by way of punishment, they do not render him ineligible, 
that is, incapable to be elected, but prevent him from assuming the 
functions of a member until they are removed.^ But this depends 
upon the language used in reference to each particular disqualifica- 
tion, and the time to which it relates. Thus, where it is said, 
that no ■person, holding a particular office, &c., " shall have a 
seat ; " — " shall be a member ; " — " shall at the same time have a 
seat ; " — " shall hold a seat ; " — " shall be capable of having a 
seat ; " — " shall be capable of being a member ; " — " shall be capa- 
ble of holding any office ; " — " shall act as a member ; " the dis- 
qualification relates to the time of assuming the functions of a 
member;- but where the following terms are used, namely, — 
" shall be incapable of being elected ; " — " shall be ehgible to a 
seat;" — "shall be eUgible as a candidate for;" — "shall be ineli- 
gible ; " the disqualification relates to the time of the election. 

79. The offices, which are most usually declared in express terms 
to be incompatible with the functions of legislation, are those of a 
judicial character. It may perhaps be doubted, whether such a 
declaration is necessary. The separation of the several departments 
of government from one another is in tliis country so fundamental 
and essential, that a judge, at least, of any of the higher courts, 
would hardly be considered eligible to the legislature, although not 
expressly excluded. In England, the judges of the higher courts 
are excluded from being members of the house of commons, on 

1 Payiiter's Practice at Elections, 55; Doug- 297; Case of Elias Earle, Same, 314; Cate of 
;ass, I. 143; Douglass, II. 450. George Mumfm-d, Same, 316; Sullivan, Cush- 

* See Hammond v Ilti-rkk, Clarke & Hall, ing, S. & J., 39. 



32 LEGISLATIVE ASSEMBLIES. [PaRT I. 

account of their being required to attend as assistants in the house 
of lords ; and for the further reason, that their judicial functions are 
considered as incompatible \^T.th the character of representatives of 
the people. They are not, however, expressly excluded by any 
statute, and the exclusion does not apply to all persons who exer- 
cise judicial functions. 

2. Personal Disqualifications. 

80. This description of disqualifications results either from the 
doing of some act of a criminal nature, as, in Tennessee, duelling 
and bribery, and, in Mississippi, denying the being of a God, or a 
future state of rewards and punishments, or from the conviction of 
some crime or offence, which, by the constitution alone, or the 
constitution and laws^ of a State, is declared to be a ground of 
exclusion from a seat in the legislature. In some of the States, it 
is the commission of the crime which disqualifies ; in others and 
the greater part, a conviction is also necessary. fThe offence, 
which, more commonly than any other, is made a disqualification, 
is that of bribery in obtaining an office or appointment. 

81. It seems to be immaterial, in regard to personal disqualifi- 
cations, whether the time to which they refer is that of the 
election, or that of assuming the functions of a member ; inas- 
much, as they are not in the power of the party himself, and 
cannot be put off at pleasure. Where they are inflicted as a 
punishment, the exclusion is either perpetual or for a time 
limited.^ In the latter case, the disability is, of course, removed by 
the expiration of the time ; in both cases, it may, in general, be 
entirely abrogated by a pardon. 

82. Expulsion, from a former or from the same legislative 
assembly, cannot be regarded as a personal disqualification, unless 
specially provided by law.^ 

83. In concluding the subject of disqualifications, it is proper to 
remark, that no person is excluded from being elected, by reason 
of his not being, at the time of the election, in a situation to 
assume or perform the functions of a member; thus, one who is 
temporarily absent from the country, or is sick, or imprisoned, 

1 In some of the States, authority is ex- a perpetiia], but, in others, only a temporary, 

pressly given by the constitution to the legis- disqualification. Where disqualification fol- 

lative power, to inflict disquahfication as, a lows a conviction on impeachment, it mav be 

punishment for certain crimes. either for a time or perpetual. 

3 In most of the States, a conviction of brib- ^ gee Wilkes's Case, Male on Elections, 46; 

ery, in obtaining an office or appointment, is Rogers on Elections, To. 



Chap. IV.] mode of election. 33 

either for debt, or as a punishment, may nevertheless be elected, 
and may take upon himself the functions of a member, when he 
returns, or recovers, or is discharged from his confinement. One 
who is imprisoned for debt, either on mesne process, or in execu- 
tion, may not only be elected but will be entitled to be discharged 
from his imprisonment for the purpose of attending his duty as a 
member.! 

84. It seems necessary also to remark, that a member may be 
expelled, or discharged from sitting, as such, which is the same 
thing in milder terms, for many causes, for which the election 
could not be declared void.^ 



CHAPTER FOURTH. 

OF THE MODE OF ELECTION. 

85. The convening of a parliament in Great Britain is a branch 
of the royal prerogative, to be exercised by the sovereign, at his 
pleasure ; the only restriction put upon it by law being, that no par- 
liament can last for a longer period than seven years, and that the 
sovereign cannot allow a greater period than three years to elapse 
between the dissolution or expiration of one parliament and the 
calling of another ; and, when the calling of a parliament is deter- 
mined upon by the king in council, a royal proclamation is issued, 
directing the lord chancellor to summon the peers, and to send out 
writs for the election of members of the house of commons.^ The 
writs being sent out accordingly to the sheriffs of the several 
counties, those officers issue precepts to the proper officers of the 
cities and boroughs, within their several counties, for the election 
of members therein, and proceed themselves to call county meet- 
ings for the election of members for their several counties. The 
legislative assemblies of the colonies and provinces belonging to 
the British Empire are convened in the same manner by their 
local governors. 

86. In this country, the place of royal prerogative is supplied, so 

1 This subject will be considered at length, treating of the expulsion of a membei as a 
Inder the head of privilege. punishment. 

* This subject will be again adverted to in * Appendix, 11. 



34 LEGISLATIVE ASSEMBLIES. [PaET I. 

far as analogous powers exist in our governments, by written 
constitutions which generally prescribe the time for the election, as 
well as for the meeting, of the legislative assemblies. The election 
of the members being also provided for and regulated by the 
constitutions and laws, the municipal officers appointed for the 
purpose take the proper measures for effecting the election, in 
the manner required by law, without any previous command or 
warrant from any other authority, but merely in the regular dis- 
charge of their official duties. 

87. The duties of these officers consist in preparing beforehand, 
(where required by law,) the lists or registers of the qualified voters, 
— in notifying the times and places for the meetings of the elec- 
tors, — in receiving, counting, and declaring the votes, — in deciding 
whether any and who among the persons voted for are elected, — 
and in returning or certifying the election of the members chosen.^ 
In some of the States and in reference to certam elections, these 
duties are all performed by the same set of officers ; in others, they 
are distributed among several.^ 

88. It woTild not be practicable, within the limits of this work, 
to present a complete view of the election laws even of a single 
State ; nor does the subject require more than a statement of some 
of the leading principles, which are or may be common to all sys- 
tems. It will be sufficient, therefore, to consider briefly : 1st, the 
right to vote ; 2d, the different modes of voting ; and 3d, the prin- 
ciple upon which the result of an election is to be determined. 

SECTioisr I. Of the Right to Votk 

89. Every person, possessing the qualffications required by the 
constitution and laws of the State in which he resides, and not dis- 
qualified thereby, has a right to give his vote at all elections for 
whomsoever he pleases, whether a candidate or not, and whether 
eligible or not;-^ but, in order to entitle any one to exercise this 
right, it is necessary that he should have previously done every 
thing incumbent upon him by the laws, either in getting his name 
inscribed on the list of qualified voters, or in establishing his right 
by proper evidence at the polls. 

1 Such neglect of duty, or abuse of official judicial capacity; in the former, in receiving 

authority, as will be sufficient to set aside an the votes and returning the persons elected; 

election, wUl be treated of further in the sec- in the latter, in determining questions relating 

tion on controverted elections. to the right to vote, and in deciding upon the 

* In the perfoiTXiance of them, the officers result of the elections. 
act partly in a ministerial, and partly in a ^ i^j^ie on Elections, 30, note. 



Chap. IV.]. mode of election. 35 

90. If an elector, therefore, having a legal right to vote, and 
having done every thing incumbent on him to entitle him to exer- 
cise his right, is wilfully and maliciously prevented from voting, by 
the officers whose duty it is to receive his vote, he may maintain 
an action on the case for damages against such officers ; on the 
general ground, that, ^vherever the common la^v gives a right, or 
prohibits an injury, it also gives a remedy by action.^ 

91. Equality being essential to the right of suffrage, that is to say, 
each qualified voter being the equg,l in point of right of every other 
voter, whatever difference there may be in other respects between 
them, no person can be permitted to give more than one vote at the 
same election. K a second vote is given, it will not only be void, 
but if given knowingly and corruptly, will, in most, probably in all 
the States, subject the voter to punishment. The rule is the same, 
whether there is only one person to be elected, or whether two or 
more persons are to be chosen at the same time. In the latter case, 
each elector must vote for all the persons who are to be chosen, or 
as many of them as he pleases, by one and the same act ; he can- 
not be permitted to give his vote first for one, and, after some inter- 
val, to come again to the polls, and vote for another ; such a mode 
of voting by instalments would introduce the utmost confusion.^ 

92. This principle is only applicable to the same trial or attempt 
to elect ; for if no election is effected at the first trial, and a second 
attempt takes place, or a new election is ordered, electors may 
not only vote again, but give their vote for a different or even 
opposing candidate ; ^ nor in case of an equality of voices, have 
returning officers, as such, any right to vote a second time, and give 
a casting vote, in order to determine the election, or, which is the 
same thing, to return one of the candidates in preference to the 
other. This authority may be conferred upon returning officers, as 
it is by the constitution of Missouri in regard to elections of sheriff 
and coroner, by the constitution or laws of their State ; but if no 
sach authority is given them, returning officers, if qualified as elec- 
tors, vote merely as such. 

93. Where, however, several persons are to be chosen at the 
same time, unless there is some express provision of law to the 
contrary, or it is manifestly impracticable from the nature and situa- 
tion of the constituency, or by reason of other circumstances, there 
is nothing to prevent the election of several persons from being 

^ Appendix, III. tions, 136 ; Draper v. Johnston, Clarke & Hall, 

* Bridge-water, Peckwell, I. 109; Comm. 703. 
Tour. XIII. 90 ; Same, XV. 135 ; Male on Elec- * Wtnchelsea, Glanville, 21. 



36 LEGISLATIVE ASSEMBLIES. [PaRT I. 

made separately ; and where there is any doubt as to the number 
of persons to be elected, it is exceedingly important, if it can be 
done, that they should be so elected ; for, where more persons are 
chosen and returned than a constituency is entitled to elect, if they 
are all chosen at once, the whole election will be void ; ^ but if 
chosen separately, the election of those only Vv^ill be void, who are 
chosen after the proper number has been elected.^ The reason is, 
that in the first case, it is impossible to discriminate among the 
persons elected, and to assign the election to any of them, in pref- 
erence to the others ; ^ whereas, in the case of separate elections, 
the right of the constituency being exhausted, when the requisite 
number has been elected, all the further proceedings are merely 
nugatory. 

Section II. Of the different Modes of Voting. 

94. Of all the modes of election, which have been practised 
among different nations, and at different times, two only are in 
general use in the United States, namely, the viva voce or oral, and 
the ballot or written, suffrage. In the constitutions of New Hamp- 
shire, Vermont, Massachusetts, and Rhode Island, the method of 
voting by baUot is considered to be established as the method in 
general use, and is sanctioned either in express, terms or by equiva- 
lent language ; in those of the following named States, it is ex- 
pressly required, T\dth some unimportant exceptions, in all general 
elections, namely: Maine, Connecticut, New York, Pennsylvania, 
Delaware, Maryland, North Carolina, South Carolina, Florida, 
Alabama, Mississippi, Louisiana, Tennessee, Ohio, Indiana, Illinois, 
Michigan, Texas, Iowa, Wisconsin, and California ; in the consti- 
tutions of four States, namely, Virginia, Kentucky, Georgia, and 
Arkansas, is the system of viva voce or oral suffrage prescribed 
at aU general elections ; while in those of Pennsylvania, California, 
Missouri, Florida, Louisiana, Tennessee, Ohio, Michigan, Alabama, 

1 The law of Massachusetts provides, that inhabitants of any town or city were entitled 

" if, at anj' election, a greater number of can- to elect, and the state of the vote therefor was 

didates, than the number to be elected, shall presented, that the election of the proper num- 

severally receive a majority of the whole num- ber should be determined by the votes given 

ber of ballots, a number equal to the number respectively for each. 

to be elected, of such, as have the greatest 2 y^eg; Springfield, Gushing, S. & J., 64; 

excess over such majority, shall be deemed Baih, Same, 73; Dighion, Same, 74; Oxford, 

and declared to be elected." Eev. Sts. c. 4, Same, 75; 5m«otj, Same, 80, 154 ; Beldiertoim, 

§13. Perhaps, in that State, it would be Same, 103; Westford, Same, 141; Maiden, 

held, under this provision, that if a greater Same, 293. 

number of members were returned than the ^ See Cong. Globe, VIL 135. 



Chap. IV.] mode of election. 37 

Iowa, North Carolina, Kentucky, Wisconsin, Arkansas, (in certain 
cases,) and Indiana, this system is requu-ed to be pursued only in 
elections by the legislature. Where the system of oral suffrage 
prevails, the elector makes a declaration to the returning officer, or 
to some person appointed by him, of the person or persons for 
whom he votes ; which declaration is entered in a book provided 
for the purpose, called the poll book. In elections by ballot, each 
voter gives his suffrage by means of a piece of paper, or oiher 
convenient material, having the name of the person for whom he 
votes written or printed on it, which he deposits in a box, or urn, 
or other suitable receptacle provided for the purpose by the proper 
officers, and kept in their custody during the election. The distin- 
guishing feature of the oral suffrage is publicity ; that of voting by 
baUot, secrecy. When the particular mode is prescribed by law, 
or established by usage, no other can be regularly pursued.^ The 
importance of the subject renders it proper to describe these modes 
of proceeding, and to state the principles applicable to each, with 
some degree of minuteness. 

1. Oral Suffrage. 

95. In England, where members of parhament are elected by 
oral suffrage exclusively, the mode of proceeding is as follows : — 
The electors being assembled together for the purpose of the 
election, the sheriff or other returning officer usually inquires of 
them, in the first instance, whom they elect to serve them in 
parliament. The candidates are thereupon proposed; each of 
them, to the requisite number, being nominated by one elector, and 
seconded by another. If no more candidates are proposed than 
are required to be chosen, those who are named, being thus silently 
agreed to, are to be declared duly elected, and immediately 
returned. 

96. If opposing candidates offer themselves, or are proposed by 
the electors, the returning officer determines upon the view who 
are the choice of the major part of the electors, and makes declara- 
tion accordingly. If the electors are unanimous, or a few only 
dissent, it is easy to determine the election in this manner ; but, if 
the returning officer is in doubt, or a poll is demanded, either by a 
candidate or an elector, (which demand must be made in due 
time, that is, before the majority is declared upon the view, or 
within a reasonable time afterwards,) the officer must then proceed 

1 Easton v. Scoit, Clarke & Hall, 272. 

4 



k 



38 LEGISLATIVE ASSEMBLIES. [PaRT I. 

to take the poll, or, in other words, to try the question by the 
numeration of the voices, in the manner abeady mentioned. 
When the votes have all been thus taken, and counted, the return- 
ing officer announces to the electors "which of the candidates have 
the requisite number of voices, and declares them to be duly 
elected. An election, at which there are opposing candidates, is 
said to be contested. 

97. In taking the poll, it frequently happens, that objections are 
made to particular votes, which are of a nature to require a more 
deliberate examination, than the hurry of the moment ^^-ill admit 
of; or that doubts arise, in regard to votes, which may be removed 
on further inquiry. In such cases, it is usual for the returning 
officer to receive the votes, subject to his ulterior determination, 
whether to admit or reject them.^ Votes received in this maimer, 
which are denominated queried votes, must be examined and 
decided upon immediately on closing the poU, and before declara- 
tion of the election ; and, if the returning officer is thereupon satis- 
fied that they ought not to be received, or if the parties neglect or 
refuse to make them good, they are to be struck off the poU ; 
other\\T-se they are allowed to remaia. 

98. Where votes are merely questioned in this manner, and a 
scrutiny is not called for, the returning officer has no authority to 
strike off any other votes ; but if a scrutiny is demanded by a can- 
didate, or by two or more electors, and the returning officer deems 
it necessary, (which is a matter entirely Vvdthin his discretion,) the 
whole poU is then open to revision. A scrutiny is deffiied to be a 
general reconsideration, by the returning officer, or by other 
persons appointed by him, of the entire poll, or of the validity of 
particular votes ; or an examination of the grounds of certarn 
claims, which have been respectively received or rejected ; and 
amending the poU by correcting or establishing the decisions so 
made, as they may prove to have been erroneous, or otherwise.^ 

99. Wlien an elector has once voted in this form, he is not at 
liberty afterwards at the same trial to change his vote ; but if, after 
it has been reduced to writing, that is, entered on the poU book, it 
appears to have been taken down for a ^\Tong candidate, by mis- 

1 ilale, 140. a return, which he did, of Lord Hood and ilr, 

2 In the contested election for Westminster, Fox. The inconvenience of this case led to 
in 1784, the returning officer granted a scru- the passing of a statute, regulating polls and 
tiny, which lasted not only until after the scrutinies, which among other things provides, 
return day of the writ, but for several months that no scrutiny shall be protracted beyond 
after the sitting of parliament. The house of the return day of the writ. 

commons at length directed the officer to make 



Chap. IV.] mode of election. 39 

take, the vote may be corrected on clear and satisfactory evidence 
of the mistake, provided application be made for that purpose to 
the returning officer, before the close of the poll.^ 

100. The poll is to be closed, when all the electors who intend 
doing so may be presumed to have voted. But, as a man is not 
compellable to give his suffrage at all, or at any particular time, but 
at such period of the poll only, as he thinks wiU best serve the can- 
didate to whom he gives it, or best suit his own convenience, it is 
left to the impartial discretion of the returning officer, regulated by 
common usage, to determine what time he wiU allow, towards the 
end of the poll, for the voters to come in. It is usual to make three 
proclamations at a small interval from each other, that the poll is 
about to be closed at a certain time, which is a fair notice to the 
remaining voters to come in. At the time appointed, the poU' book 
is closed.^ 

101. When all the proceedings, which may intervene between the 
taking of the poll, and the declaration of the result, have been 
brought to a close, the returning officer declares who are elected, 
and proceeds forthwith to make his return.^ 

102. Such is an outline, — very briefly sketched, — of the manner 
in which an election of a member of parliament is conducted in 
England. The form of proceeding, in those parts of the United 
States, where oral suffi'age is practised, is the same in substance ; 
with such modifications as may have been introduced by the con- 
stitution and laws of each particular State. 

2. Ballot. 

103. A ballot may be defined to be a piece of paper, or other 
suitable material, with the name written or printed ^ upon it of the 
person to be voted for ; ^ and where the suffi-ages are given in this 
form,'^ each of the electors, in person,' deposits such a vote in a box 

1 Male, 136. was considered to be a question exclusively 

2 Jliile, 173. within the competency of the inspectors to 

3 The form of this instrument will be de- decide. Adams v. Wilson, Clarke & Hm.11, 373. 
scribed hereafter. « Where the form of a ballot, or the manner 

< Printed votes are written votes, within the of depositing it in the box, is prescribed by 

meaning of the provision in the constitution law, ballots must be prepared and deposited 

of Massachusetts, that " every member of the accordingly, or they will be rejected by the 

house of representatives shall be chosen by returning officer. Latimer v. Patlon, Clarke 

written votes." Henshaw v. Foster, Picker- & Hall, 69; Adams^. TT'«7*w), Same, 378; Reed 

ing's Reports, IX. 312. v. Garden, Same, 353. 

" Where a ballot had the name of a candi- " See, as to voting by proxy. Case of John 

date printed on it, but was defaced by a single Richards, Clarke & Hall, 95, 99 ; Case of Joseph 

grroke of a pen drawn over it, it was held by B. Varnam, Same, 112; Lynn, Gushing, S. & J., 

the inspectors, to be a blank vote ; and this 255 ; Jackson v. Wayne, Clarke & Hall, 57, 59. 



40 LEGISLATIVE ASSEMBLIES. [PaET I. 

or other receptacle provided for the purpose, and kept iii the cus- 
tody of the proper officers. 

104. Where two or more persons are to be elected to similar 
offices, at the same time, they may be voted for separately, that is, 
at separate ballotings; or they may be voted for all together on the 
same ballot ; in the latter case, each ballot must contain no more 
(though it may contain fewer) names, than the number of persons 
to be elected ; for, where more names are on a ballot than the 
number of persons to be voted for, it is impossible for the returning 
officers to determine which of them (amounting to the requisite 
number) the voter intends ; and, consequently, such a vote must be 
rejected for uncertainty .^ 

105. Where several persons are voted for on the same ballot, for 
the same office, it is of no consequence to annex to the several 
names the offices for which they are respectively intended ; but 
where different officers are thus voted for, it is essential that each 
of the names should be accompanied by a designation of the office, 
for which the voter intends it ; and, if there is no such designation, 
the ballot must be rejected for uncertainty. 

106. K a ballot happens to have the same name written or 
printed on it more than once, it is not therefore to be rejected ; 
because, as it is but one piece of paper, it cannot be counted as 
more than one vote ; and, though the same name is written on it 
several times, it is yet but one name. Thus, where ballots are pre- 
pared for distribution in the usual way practised in some of the 
States, that is, by the name of the candidate being written or 
printed several times on the same shp of paper, for the purpose of 
being cut up into separate ballots, and being nearly cut apart, but 
so as to adhere together at one end, and an elector inadvertently 
puts two votes not entirely separated into the box, they will be 
counted as one ballot, unless there are circumstances present, which 
afford a presumption of a fraudulent intent, in which case, they 
must either be rejected, or the whole ballot set aside. 

107. Where several different officers, or sets of officers, are to be 
elected at the same election, two modes of receiving the votes may 
be practised, namely ; either to receive all the ballots into one box, 

1 In the case of Washburn v. Ripley, Clarke but this decision cannot be sustained upon 

& Hall, 679, the Committee on Elections held, any other principle, than that an elector may 

that a ballot, having three different names on vote against one man, without voting for 

it, and another, ha^nng two different names on another, which Lord Mansfield, in Rex v. 

it, given at a balloting for a member of con- Monday, Cowper, 530, declared could not be 

gress, might each of them be counted as a done, 
single ballot, in making up the whole number; 



Chap. IV.] mode of election. 41 

in which case, each ballot, besides the name of the candidate voted 
for, must contain also a designation of the office, and the ballots 
may either be separated, or the names be contained aU on one 
sheet ; ^ or to have as many boxes as there are officers, or sets of 
officers to be voted for, in which case, the several boxes must be 
labelled with the designation of the office, and the votes for each be 
deposited in the appropriate box. Where the first mode is adopted, 
the intention of a voter can only be known from the designation 
on his vote ; where the other mode is used, it can only be known 
from the designation of the box in which the ballot is deposited ; ^ 
but if ballots, which bear a designation for one office, are put 
into the box appropriated and designated for another, such votes are 
not necessarily to be counted for the latter.^ 

108. When an elector has once voted, in this form, that is, when 
he has placed a ballot in each box (if there be more than one) in 
which votes are to be received, whether he has thereby fully exer- 
cised his right of suffi-age or not, he cannot be permitted to add to, 
or to alter his vote,"* any more than when the voting is oral, not 
even when he has by mistake voted differently from what he 
intended. A mistake occurring on the part of the officers conduct- 
ing the election, by which a voter is made to vote differently from 
what he intended, may as well be corrected where the voting is by 
ballot, as where it is oral. 

109. If the material, of "which a ballot is composed, is suitable 
for the purpose, that is, convenient in point of size and shape, and 
sufficiently dm-able, and the Meriting or printing on it is legible and 
permanent, it can hardly be of any consequence what the material 
is, or in what manner the name is put upon it ; unless these matters 
are particularly regulated by law. It is equally unimportant what 
sort of receptacle is used for receiving the ballots, provided it is 
sufficient to contain them and can be made reasonably secure.'^ 

110. The name on a ballot being an essential part of it, it should 
be so written or printed, as to designate the person intended 
beyond any reasonable doubt. Where there are several persons 

1 111 the city of Boston, the ballots are all United States, it appeared, that a large gourd 

brought in on one sheet. was used for receiving the ballots ; which 

- Washbm-n v. Ripley, Clarke & Hall, 679. during the adjournment of the poll, was se- 

^ Case, of Thomas Nash, Jr., Gushing, S. & J., cured by being carefully stopped, and tied up 

439. in a handkerchief; and it was held, that tho 

* Washburn v. Ripley, Clarke & Hall, 679; direction of the law of Tennessee, requiring 
Ante, § 97 that the ballots should be placed in a box 

* In the case of Arnold v. Lea, decided in locked or otherwise well secured, was thereby 
1830 by the house of representatives of the sufficiently compHed with. Clarke & Hall, 601. 



.42 LEGISLATIVE ASSEMBLIES. [PaET L 

of the same name in a constituency, all of "^'hom are in fact 
equally eligible, and one of them has been designated as a can- 
didate, ballots bearing that name are, by a reasonable intend- 
ment, and Tvithout any further designation, supposed to be given 
for such candidate. Questions relating to the name arise from the 
use of additions or abbreviations, and firom the name being mis- 
spelt. 

111. Additions to the name, as junior, senior, esquire, and the 
like, and titles prefixed thereto, as general, colonel, honorable, etc., 
constitutmg no part of the name, the general rule is, that they are 
to be vv^holly disregarded ; so that aU ballots, \\^hich bear the same 
name, however different they may be, in respect to such additions 
and titles, are to be considered as given for one and the same 
person.! 

112. Abbreviations, which are in common use, such as those 
which usually and frequently occur in WTiting and printing chris- 
tian names, must be considered as designating the persons 
iatended with as much certainty as if the names were Tvoitten at 
length. In regard to other abbreviations, and to the use of initial 
letters, in the place of names, no other general rule can be laid 
down, than that the name must be considered as properly Avritten 
or printed on the ballot, provided the returning officers understand 
thereby, beyond a reasonable doubt, for whom the voter intends his 
vote. 

113. When the name of a candidate is misspelt on the ballot, 
but still bears the same sound, when pronounced according to its 
orthography, with the true name, it is to be considered as the same 
to all intents and purposes ; but, where the name on a baUot is spelt 
so differently from the true name of the candidate, for whom, if for 
any one, the voter probably intends it, as in reality to constitute a 
different name, though yet so similar as to render it probable that it 
was intended for such candidate, the only general rule seems to be, 
to regard such name as the same or as a different one, according 
the conviction of the returning officers as to the voter's intention.^ 
Where the name is not only different, but unlike, no question can 
arise as to the intention ; because, it clearly amounts to a mistake 

1 Turner v. Baylies, Clarke & HaU, 234; ^ Root y. Adams, C\?irks. & Hall, 271; Mai 

T^ffjamsv. 5o)oe;-a-, Same, 263; Willoughby v. lary v. Merrill, Same, 330, 331; Colden v. 
Smith, Same, 265; Guyon v. Sage, Same, 348; Sharps, Same, 369. 
Hugunin v. Ten Eych, Same, 501 ; Wright v. 
Fisher Same, 518; I-vnu, Gushing, S. & J., 
236. 



Chap. IV.] mode of election. 43 

on the part of the voter, as to the name of the person for whom he 
intends to vote, which, as has ahready been stated, cannot be 
corrected. 

114. Pieces of paper, of the shape, size, and general appearance 
of ballots, but without any name on them, placed in the ballot box 
by qualified voters, under the pretence of voting, are known by the 
incongruous name of blank votes or ballots ; and, in some sections 
of the country, it is understood, are, or have been allowed to be 
counted as ballots, in making up the whole number of votes, 
where an absolute majority is necessary to a choice ; on the 
ground that being cast by quahfied voters as and for ballots, they 
must be received and allowed all the effect, of which they can, by 
any possibility, be capable, namely, that of being counted against 
the candidates voted for by the other electors. But this ground is 
wholly untenable, inasmuch as the right of suffrage is a right on 
the part of the electors to elect some one to an office, and not a 
right to prevent an election from being made ; and, as all the elec- 
tors have the same right, it follows, that each of them is bound to 
exercise his particular right in such a manner, as to allow to every 
other elector, the free and full exercise of the same right on his 
part ; which would not be the case, if one elector had the power, 
by means of a blank, to defeat the vote of another for a particular 
candidate, without himself voting for anybody. Suffi-age, being a 
solemn duty, as well as a- fundamental right, ought neither to be 
neglected nor abused. Lord Mansfield,^ speaking of the election 
of members of parliament in England, where, as has been seen, the 
electors give their suffi'ages orally, said, that the only way of 
defeating the election of one candidate was by voting for another. 
The remark is equally just in reference to elections by ballot.^ 

Section III. — Of the Principle upon which the result of 
AN Election is determined. 

115. In all collective bodies of men, assembled and acting 
together for the purpose of deliberating and deciding upon any 

^ In the King v. Monday, Cowper's Reports, date; in which case, an effect might be given 

530. to them by regarding the balloting as ineffec- 

2 Blank votes cannot, of course, be given, tual. In the house of representatives in con- 
where the voting is oral ; nor, as will be seen gress, it is declared by a rule, (11,) that in 
hereafter, can they be supposed to have any all ballotings of the house, blanks shall be 
effect at all, in elections by ballot, where a rejected, and not taken into the count in the 
plurality alone is necessary to elect; unless enumeration of votes, or reported by the 
indeed, the number of blanks exceeds the tellers. The same principle is declared by law 
highest number of votes given, to any candi- in Massachusetts. Rev. Sts. c. 13, ^ 4. 



44 LEGISLATIVE ASSEMBLIES. [PaRT L 

subject, or for the purpose of electing to any oflice, it is an 
admitted principle, that whatever is done or agreed to by the 
greater number shall stand as the act or the will of the whole. 
This principle assumes, as its basis, the absolute and perfect 
equality of all the individuals, one with another, who enjoy the 
right of suf&age, in the possession of the elements essential to the 
determination of any act to be done, or to the formation of any 
judgment to be pronounced, or to the effecting of any election to 
be made, as the act, judgment, or choice, of the whole. 

116. This equality being conceded, — and, as the foundation of a 
system of government, it can neither be denied in fact, nor ques- 
tioned in principle, — it is easy to conclude, first, — that the 
knowledge and wisdom of the greater number taken promiscu- 
ously will be superior to the knowledge and wisdom of any 
smaller number of the same body of men ; and, secondly, that, as 
whatever is done or resolved by the greater number affects and 
operates upon the individuals themselves composing it equally 
with the others, that which is so done must necessarily possess the 
quality of justice in a higher degree than the act or resolution of 
any smaller number would be lil^ely to possess. It is upon these 
grounds, that the common sense of mankind recognizes the 
authority of the majority as the only solid foundation of all popular 
government. 

117. The term majority, that is, the greater number, is under- 
stood in this country in two significations. In its broadest sense, 
it denotes the greatest of any number of unequal divisions of the 
whole body ; in its strictest, the greater of any two unequal divis- 
ions of the whole body. In the popular elections of this country, 
both these principles are practically applied ; the first being known 
as the principle of plurality ; the other only as that of majority. 

1. Plurality. 

118. In elections, in which the principle of plurality is adopted, 
the candidate, who has the highest number of votes, is elected, 
although he may have received but a small part of the whole ; 
and, where several persons are voted for at the same time for the 
same office, those (not exceeding the number to be chosen), who 
have respectively the highest number of votes, are elected. But, 
where tw^o or more persons have equal numbers of votes, there is 
no election, and a new trial must take place, unless some other 
mode of determining the question is provided by law. In some of 
the States, where the votes are thus divided, the retm-ning officers 



Chap. IV.] mode of election. 45 

are authorized to decide bet^ween them, and to return which they 
please ; but, unless thus expressly authorized by law, the returning 
officers have no casting vote.^ 

2. Majority. 

119. According to the definition just given, a majority as distin- 
guished from a plurality being the greater of any two unequal 
divisions of the whole body, the candidate who is elected, where 
one only is to be chosen, must receive more votes than are given 
for all the other candidates put together ; . and, where two or more 
persons are to be elected at the same time, those who are elected 
must each of them receive a number not less than the greater of the 
two nearest unequal numbers, into which the whole number can be 
divided. If ttie whole number is an even one, the number neces- 
sary to a choice is its half, increased by one ; if the whole number 
is uneven, the number necessary to a choice is the one half of the 
whole number increased by one ; thus, if the whole number is ten, 
the number requisite to a choice is six; if the whole number is nine, 
the number requisite to a choice is, five. 

120. In order to determine the result of an election, on the prin- 
ciple of an absolute majority, it is necessary in the first place, to 
ascertain the whole number of persons who have voted ; which, if 
the suffrages are taken orally, is effected by counting the names on 
the poll book ; or if the voting is by ballot, by counting the number 
of ballots.2 

121. This mode of ascertaining the whole number, although it 
seems to be the only practicable one, operates to the disadvantage 
of those of the candidates, if any, where several persons are voted 
for on the same ballot, whose names happen to be omitted from 
some of the tickets ; because the number of votes, or majority, 
necessary for such persons to have, in order to be elected, being 
determined by counting aU the ballots, including those which do not 
bear the whole number of names, and which, so far as those persons 
are concerned, are mere blanks, is increased beyond what it would 
be, if the candidates were voted for separately. 

122. On the other hand, another mode of ascertaining the whole 
number, which has sometimes been adopted, with a view to avoid 

1 TFincWsea Glanville, 25; Ante, § 92; » Rev. Stat, of Mass. c. 4, § 13. See .4nd<> 
Qutew V. Chnprnan, Modern R'\ports, VI. 152'; ver, Gushing, S. & J. 205. 
Reea v. Ctrden, Clarke & HaL\ 353 ; Sum,Vy 
(Htiztns V. k^ergeant, Same, 616. 



46 LI]GISLATIVE ASSEMBLIES. [PaET L 

the inequality just alluded to, runs into the opposite extreme, and 
aUows those whose names are on aU the ballots to be elected by less 
than a majority. This mode consists in counting aU the names on 
the ballots, and dividing the number by the number of persons to be 
chosen ; the quotient is taken as the whole number of ballots given.^ 
This mode of proceeding has not been sanctioned. 

123. If the candidates on both sides could be numbered consecu- 
tively, and each number considered as a separate balloting, these 
inconveniences attending the voting by general ticket would be 
remedied. 

124. In Massachusetts, when it happens, as it may where an 
election of several persons is made at one balloting, that more per- 
sons have the requisite majority than the number of persons to be 
chosen, it is provided by statute, that the highest on the list, not 
exceeding that number, shall be considered as elected.^ The same 
statute also provides, that if the whole number of persons to be 
elected cannot be completed, by reason of any two or more having 
received an equal number of votes, the persons having such equal 
number shall be deemed not elected. The rules thus established 
are so reasonable and proper, and so entkely analogous to admitted 
principles of the law of elections, that they would probably be 
recognized, even though not sanctioned by any express provision 
of law. 

125. The principles just stated lead to the conclusion, that where 
in any election, in which an absolute majority is necessary to a 
choice, the voting is by ballot, and the ballots are received and dealt 
with in such a manner, as to render it impossible to ascertain the 
number of persons voting, the whole proceeding is necessarily void. 
Thus, where two persons were to be elected at one balloting, and 
some of the voters gave in ballots containing two names, — some 
were allowed to give in two separate ballots with one name on 
each, — some gave in only one ballot with but one name on it, — 
and the ofScers presiding at the election divided those ballots having 
two names on them into two, before counting, — so that the whole 
number of persons voting could not be ascertained, the election was 
held void.'^ So where the officers presiding inadvertently omitted 
to sort and count a considerable part of the ballots.* 

1 Charlestovm, Gushing, S. & J., 167; Case ^ TFrew^^am, Gushing, S. & J., 70; Newbury, 

of William B. Adams, Same, 267; Wrentham, Same, 191; Braintree, Same, 395. 

Same, 70; Newbury, Same, 191. * Andover, Gushing, S. & J., 187. 

' Rev. Sts. c. 4, ^13. 



Chap. IV.] mode of election. 47 

3. Origin and Introduction of the Majority Principle. 

126. At the time of the first settlement and colonization of the 
United States, the elections of members of parliament in England 
vvere conducted upon the principle of plurality ; which also pre- 
. ailed in all other elections, in wMch the electors were at liberty to 
select their candidates from an indefinite number of qualified per- 
sons. Such has been and still continues to be the common law of 
England ; and such is the present practice in that country in all 
elections. Indeed, what is meant there by the term majority em- 
braces what is denoted with us by the word plurality. 

127. In this country, however, the principle of majority, or 
absolute majority, as it is sometimes called, was early introduced 
into the law of elections by the colonists of New England ; where 
it has ever since prevailed to a greater or less extent ; in some of 
the States exclusively, in others only partially. 

128. In the States, where this principle is established, it is 
usually provided by the constitution or laws, that an absolute 
majority shall be necessary to the election of certain officers. But, 
even in cases where there is no such express provision, an absolute 
majority is nevertheless required, in some of the States, in the 
election of officers, in reference to whom no other provision is 
made. Thus, in Massachusetts, the constitution contains no pro- 
vision requiring representatives to be elected by absolute majorities, 
as it does in reference to the governor, lieutenant-governor, and 
senators ; nor, until the year 1836, when the Revised Statutes went 
into operate 3n, was there any general law, requiring such a majority 
in the election of representatives or other public officers of any land ; 
but still in all elections previous to that time, an absolute majority 
was considered as necessary, by usage and custom, as it has since 
become by positive statutory enactment. Indeed, the majority 
principle is so essential and fundamental in Massachusetts, that it 
prevails in the elections of all private corporations and associations, 
as well as in those of a municipal character.^ 

129. In all the States with the exception of some of the New 

1 The plurality principle has recentlj' been constitution, was adopted by the legislature 

introduced into this State, in regard to all of 1854, and having been agreed to by the 

elections for the choice of town, city, or coun- next legislature, and afterwards sanctioned by 

ty officers, by the act of 1854, c. 39, and in the people, it has become the supreme law of 

regard to the election of members of congress the land. In Maine, by the seventh article of 

by the act of 1854, c. 70. An amendment to the amendments to the constitution, the plu- 

the constitution, extending the same principle rality principle has been introduced into the 

to the election of all civil officers under the election of representatives. 



48 LEGISLATITE ASSE:^rBLIES. [PaRT 1. 

England States, on the contrary, the principle of plurality generally 
prevails in reference to all municipal elections ; being specially 
provided by the constitution or lavi's or usages of the several States. 
Whether, in the absence of any particular provision, the plurahty 
or the majority principle vi^ould be recognized as the law, must 
depend, of course, upon the usage in each particular State. 

130. It is not unreasonable to suppose, that the diversity, which 
thus exists in the mode of determining the result of an election, 
may be the source of corresponding diversities in the political char- 
acter and history of the dili'erent States. But this is a topic, which 
it would be foreign to our present purpose to consider. It would 
be interesting doubtless to Imow what was the origin of this differ- 
ence, whether it was accidental or intentional, — if the latter, ^^as 
it the purpose in vie\^, in the establishment of the majority princi- 
ple, in some States, to secure greater permanence and stability in 
the administration of the gOA'ernment, — or was the plurality prin- 
ciple mamtained in others, for the purpose of preventing or destroy- 
ing the influence of third and other minor parties, — or whatever 
were the purposes in view, have those purposes been effected? 
These are questions, which do not probably admit of a satisfactory 
answer. The most that can now be done is to indulge in a con- 
jecture, perhaps an ill founded one, that the origin and introduction 
of the majority principle are to be attributed to the proceedings 
under the colonial ordinances of Massachusetts, in the elections of 
the magistrates of the colony.^ 

131. In connection with this subject, it may be observed, that 
where there are but t-\vo sides to a question, — as for example, 
where a proposition is made in a deliberative assembly, and the 
members vote for or against it, — or where a particular person is 
nominated for office, and the electors vote for or against him, — or 
where an election of one out of tAVO given persons is to be made, - - 
in all these cases, the majority and plurality are one and the same 
thing. 

1 Appendix, IV. 



Chap. V.] returns. 49 



CHAPTER FIFTH. 

OF THE EETURN OF THE PERSONS ELECTED. 

132. The election of members of parliament takes place, as 
already remarked, in pursuance of writs issued by the lord chan- 
cellor, in obedience to a royal proclamation.^ Like other writs, 
which require the doing of something by those to whom they are 
directed, a writ of election is to be executed, and, with the proceed- 
ings of the officer indorsed thereon, to be returned ^ into chancery, 
and there placed in the custody of the clerk of the crown, on or 
before a certain day named in the writ, called the return day. 

133. When an election is effected, a certificate thereof is made, 
by indentures under the seals of the electors, or some of them, of 
the one part, and of the returning officer of the other ; one part of 
which is attached to the precept, in the case of borough elections, 
or to the writ in the case of a county election, and is denominated 
the return.'^ All the indentures of return are attached by the sheriff, 
to the writ of election, and with it returned by him into chancery.^ 

134. A writ of election, being returnable on a day named in it, 
must be returned accordingly, whether an election has taken place 
or not. Hence, returning otEcers sometimes make a special return, 
stating all the facts, where no election has been made; or a 
double return (as it is called) where they are unable to determine 
which of two, or of two sets of candidates, has been elected. It 
must be recollected, that, in England, members of parliament are 
elected by plm-alities ; and, consequently, that where the proceed- 
ings are regular and proper, there is but one case, in which there 
can be a failure to elect, namely, when two or more of the persons 
voted for have the same number of votes. 

135. In this country, the election of the members and the con- 
vening of a legislative assembly being regulated by the constitution 
and laws, the proper officers proceed to the election, in the several 
constituencies, at the time appointed by law, of their own aulhority, 
and without any writ or precept from a higher power. With us, 
therefore, there being no writ or precept in ordinary cases, return- 

1 Ante, § 85. ^ Appendix, V. 

* Appendix, V. * Rogers on Elections, 40. 



50 LEGISLATIVE ASSEMBLIES. [PaRT 1. 

ing officers do not usually make any return, unless, in their judg- 
ment, an election has taken place ; though in some instances they 
have considered it their duty to make special statements, in place 
of returns, or to accompany their returns v^ith such statements,^ — 
• and for the same reason, double returns are rarely made, except 
under very peculiar circumstances, or where there are rival sets of 
returning officers. When a vacancy occurs in a legislative body, 
by death, resignation, or otherwise, an order is passed, or a pre- 
cept issued, for filling the vacancy. 

136. The purpose of a return is to authenticate the election in 
such a manner, as to enable the persons elected to take upon them- 
selves then official functions. In this country, the object is effected 
by means of certificates of the election (also called returns) under 
the hands of the returning officers, either given to the persons elected, 
or sent to some appropriate department of the government.^ The 
manner in which an election is evidenced varies so much in the 

*^ several States, that it can only be laid down generally, that every 
election is judged of, in the first instance, by the officers appointed 
by law to preside thereat and receive the votes, or by other officers 
appointed by law to receive the returns of votes, and that the result 
of the adjudication is certified in writing. 

137. A principle of the parfiamentary law of England, which 
does not prevail here, may very properly be mentioned in connection 
with the subject of the retm-n. The principle alluded to is, that all 
persons, free from disqualification, are eligible to the house of com- 
mons, even against their own consent, and contrary to their desire ; 
and that after theu- election, they cannot renounce then return, but 
must serve in the ti'ust conferred upon them, which is said to be a 
trust not for then own but for the public benefit.^ But though it is 
not in the power of one elected to renounce his election, in direct 
terms, and thus prevent himself from being returned ; certain expe- 
dients have nevertheless been resorted to for effecting the same 
object, which will be explained under the head of vacancies. In 
this country the rule estabfished by usage is undoubtedly the reverse 
of the principle thus stated ; no man here being considered as obliged 
to serve, against his own consent, in any office, unless specially 
required thereto by law. Hence, it is competent for one elected to a 

1 Where several persons are elected by the ^ Gloucester, Glanville, 99, 101 ; Male on 

same constituency, it seems immaterial wheth- Elections, 64; Fourth Institute, 49; Sir ffum- 

er they are returned by one certificate, or by plirey Boole's Case, Corom. Jour. VIII. 250, 

ieveral 644 ; 1 Douglass, 281. 



Chap. V.] returns. 51 

legislative assembly, to decline the office ^ conferred upon him ; in 
which case, no return can be made, and a new election must be 
held in the manner required by law. 

138. " With respect to the general duty of retui-ning officers," 
an English writer on the law of elections remarks, " the law 
exacts of every person who is placed in this situation, that his con- 
duct shall be upright, consistent, and impartial ; and that he shall 
in all respects act to the best of his knowledge and capacily; from 
which line, wherever he shall deviate, by lending himself to the 
views of particular candidates, or by making the color and authority 
of his office subservient to private ends and purposes, the so doing 
will be highly criminal, and, if brought before the house, he will not 
fail to incur both censure and punishment." ^ Misconduct or neg- 
lect of duty, on the part of returning officers, may be considered as 
affecting the electors, the elected, the election, or the public generally. 

139. In regard to the electors, we have already seen, that return- 
ing officers are liable in damages, for wilfully and maliciously refus- 
ing to receive the vote of a duly qualified elector.^ In regard to the 
persons elected, the general rule is, that returning officers are not 
liable at common law, for refusing or neglecting to make a return, 
or for making a false or double return, in derogation of the right of 
a person duly elected. But in all these cases, by statute, in Eng- 
land, returning officers are made liable to penalties or damages. 
How far an election may be affected by the misconduct, want of 
qualification, or particular proceedings, of returning officers, we 
shall have occasion to consider under the head of controverted elec- 
tions. In regard to the public, generally, the misconduct of return- 
ing officers has always been considered a public offence, mthin the 
criminal jurisdiction of the house of commons, and punishable by 
censure and imprisonment. In certain cases, also, they are made 
liable by statute to punishment by indictment. In this country, 
returning officers are punishable, by indictment, in several of the 
States, for various kinds of misconduct. How far they are, or 
would be considered, amenable to the criminal jurisdiction of the 
legislative assemblies, may be regarded as doubtful. 

140. As to the general duty of returning officers, it has been a 
point much agitated in England, whether it is wholly ministerial, or 
whether it is in any degree judicial. In reference to this question, 

the writer already referred to remarks : — " There can be no doubt, 

« 

» Bedford, Cashing, S. & J., 351; Hammond "- Male, 81. 
V. Herriclc, Clarke & Hall, 287. s Ante, ^^ 90. 



52 LEGISLATIVE ASSEMBLIES. [PaRT I. 

that in those branches of their duty, wherein the ^aw has marketi 
out a definite fine, it is ministerial ; but as regarding the two mate- 
rial branches, of deciding upon the capacity or incapacity of candi- 
dates, or upon the qualifications or disqualifications of electors, the 
subject requires some investigation. But, if the returning ofiicer be 
fully apprised of some notorious disqualification, whether of a can- 
didate or of an elector, such as then- being mmors, or claiming in 
right of property, which clearly does not entitle them to the privi- 
lege, he is so far a judicial officer, as to prevent their voting, or being 
returned, and in case he returned the one as elected, or accepted the 
vote of the other, he would in such a case be highly culpable, and 
be punished by the house ; but, on the other hand, he acts at his 
peril, and if he presume to refuse a vote \^athout good and sufficient 
reasons, he -^^ill subject himself to an action at law, by the party 
aggrieved ; but the plaintiff must show malice to support the action." 
In the judicial decisions of this country, — where this point is ad- 
verted to, — it seems to be considered, that the functions of the 
returning officers are chiefly judicial in their character. There are 
many particulars, however, in which their duties involve no exercise 
of discretion or judgment, — as, for example, in the State of Massa- 
chusetts, in receiving the unquestioned vote of an elector, whose 
name is on the list of voters, — and which are consequently merely 
ministerial. 

141. It remains to be observed, in conclusion, that the proceed- 
ings of these officers, from the necessity of the case, are, in the first 
instance, uncontrollable by any other authority Avhatever ; so that, 
if, on the one hand, notv^dthstanding an election has been effected, 
the returning officers refuse or neglect to make the proper return, 
the party thereby injured is mthout remedy or redress,^ until the 
assembly to Tv^^hich he is chosen has examined his case, and ad- 
judged him to be duly elected ; and, on the other hand, if the 
returning officers make a return, when no election has in fact taken 
place, or of one ■v^dio is not eligible,- the person returned T\all not 
only be entitled, but it is his duty, to assume and discharge the 
functions of a member, until his return and election are adjudged 
void.-3 

1 No action lies at common la-vr as to false or Ventris's Eeports, II. 37 ; Pndeaux v. Morri*, 

double returns. Barnardiston v. Soame, Lev- Salkeld's Eeports, 502. 

inz's Eeports, 11. 114; Lutwyche's Eeports, I. " Monmouth, Glanville, 121. 

89j State Trials, VH. 431; Oiishw v. RajpUy, s Pontefract, Glanville. 136. 



Chap. VI.] controverted returns and elections. 53 



CHAPTEK SIXTH. 

OF CONTROVEKTED RETURNS AND ELECTIONS. 

142. Though, as we have just seen, persons returned are pre- 
sumed to be duly elected, at least, so far as to entitle them to 
assume the functions of members ; yet the decisions of the return- 
ing officers are not conclusive ; their proceedings may be revised, 
and their judgments corrected ; and the members returned by them 
may be excluded and others admitted, upon due investigation by 
the competent authority.^ 

143. It will be perceived from what has been stated with regard 
to the determination and authenticating of elections, that one per- 
son may be in fact elected, whilst another is apparently elected, in 
which case, the latter is entitled to be returned, though the former 
is entitled to the seat ; as, for example, where two candidates only 
are voted for, and by the decision of the returning officers, admitting 
illegal or rejecting legal votes, one of the candidates has an appar- 
ent majority, the latter is entitled to the return, but the other is 
clearly entitled to the seat. 

144. This distinction, between elections and returns, has led in 
England, to their being in some instances separately considered, in 
the same case ; so that where it appears, without going into the 
merits of an election, that the petitioner against a sitting member 
was apparently elected and ought to have been returned, the house 
of commons will reverse the position of the parties, by excluding 
the sitting member, and pulting the petitioner in his place, as duly 
returned ; leaving the election open to be controverted, and throw- 
ing the burden of doing so upon the party to whom it properly 
belongs.^ The establishment of this principle in the English law 
of elections, though the distinction exists and is entirely well 
founded in those cases in which returning officers are obliged to 
grant or Avithhold the returns upon the prima facie evidence before 
them, and can have no means at hand of judging of the merits of 
an election, is, in part, at least, attributable to the very great expense 
attending the trial of a controverted election case in England ; but 
in this country, — although the same distinction undoubtedly exists, 

* SouthwarJc, Glanville, 21. ^ Rogers on Election Committees, 70, 71. 

5* 



54 LEGISLATIVE ASSEMBLIES. [PaET I. 

and it has frequently been attempted to be here introduced, — yet 
the practice of considering and deciding upon the return, distinct 
from the election, does not appear to have been anywhere intro- 
duced.i The question in every case relates to the right of member- 
sMp, generally, without reference to the position of the parties. 

145. Where a person, being duly elected, is not retm'ned; or 
where one is returned, not being elected ; or where one person is 
elected, and another returned ; or when one is duly elected and 
returned, but is or becomes disqualified; in all these cases, the 
right of membership, whether depending upon the return or the 
election, or founded in circumstances afterwards transpuing, may 
be called in question, investigated, and adjudged. Questions of 
this description, though, in the order of time, not naturally arising 
in some cases until after the constitution of the assembly, yet 
involving the law relating to elections, may very properly be con- 
sidered in connection with the latter subject. It is proposed, there- 
fore, to state very briefly some of the principal points in the law 
and practice relating to controverted elections and returns, under 
the following heads, namely ; first, Of the tribunal for the trial of 
rights of membership, and of the time and manner of proceeding 
therein ; second. Of returns controverted or questioned ; third. Of 
elections of, and votes given for, disqualified persons; fourth, Of 
elections, as affected by proceedings injurious to the freedom of 
election; fifth. Of elections as affected by the qualifications and 
conduct of the returning officers.^ 



Section I. — Of the Tribunal and Mode of Proceeding. 

146. The present constitution of the house of commons is, to a 
considerable extent, the result of a series of struggles bet^^een it, 
on the one hand, and the sovereign, or the lords, or both, on the 
other. One of the earliest of these conflicts, and one of the most 
interesting, is that which terminated in the establishment of the 
right of the commons, to be the exclusive judges of the returns, 
elections, and quahfications, of their own members. This right, 
after having been claimed and exercised, at one time, by the king 
and council, at another, by the house of lords, and, again, by the 

1 Easton v. Scoit, Clarke & Hall, 272, 278; subject, though not such as "would be adopted 
Biddle if another v. Wing, Same, 504. See also in a complete and scientific treatise, on tne 
Potter V. Bobbins Same, 877. law of elections, will be found adequate to tha 

2 This class jication and aiTangement of the purposes of the present work. 



Chap. VLj controverted returns and elections. 55 

lord chancellor, was declared by a resolution of the commons, in 
1624, and has ever since been admitted to belong exclusively to 
the house itself, as " its ancient, natural, and undoubted privilege." ^ 
147. This power is so essential to the free election and independ- 
ent existence of a legislative assembly, that it may be regarded as 
a necessary incident to every body of that description, which 
emanates directly from the people ; it is also, out of abundant 
caution, conferred upon or guarantied to most of the legislative 
assemblies of the United States, by express constitutional pro- 



visions 



148. An inquiry into the right of a member to his seat may be 
brought forward, in the first instance, either by the motion of a 
member, or by the petition of a party interested ; or it may arise 
from an examination of the returns. 

149. It is undoubtedly competent to a legislative assembly to 
institute inquiries relative to the rights of its members, of its own 
mere motion, and without the intervention of any complaint on the 
part of the electors or of one claiming a seat ; for, otherwise, the 
freedom of election might be as much injured, by a compromise 
between contending parties, or by a subsequent buying up of 
dissatisfied electors, as by direct bribery at the election. Any 
member, therefore, may bring forward an inquiry into the right of 
any other member, to his seat, by a motion, predicated upon facts 
which are notorious to the assembly, or upon statements or inqui- 
ries made by the mover himself.-^ Sometimes, also, an inquiry is 
instituted at the request of the member himself, whose right is im- 
plicated, either upon a statement or motion made by him, or upon 
his suggestion, or by a letter addressed by him to the presiding 
officer.*^ 

150. A much more common mode of instituting the inquiry, 
especially where it relates to the election or return rather than to 

' Ghmville, Ixxxiii. 60. reference to these subjects, is now properly 

2 Motwithstanding power is expressly given coisidered to be as full and perfect, as that of 

by the constitution of the United States to either branch of any State legislature. See 

each of the two houses of congress to judge of Sjiaidrliiig v. Mead, Clarke & Hall, 157, 161. 
the elections, returns, and qualifications of its '^ Glanville, 119; IIopfcuHon, Gushing, S.& J., 

own members, an attempt was early made to 6; Dunstable. Sumo, 19; 1 a/■^■, Same, 30 ; Case 

restrict the right to judge of the returns, of David Bard, Clarke & Hall, 116; Case of 

in such a manner, as to confine it to the John P.Van Ness, ^MX\e,\2'i,\ Williams v. Bow- 

inquiry whether they conformed to the rules ers, Same, 263; see also, the case of John 

prescribed by the State from which they Horne Tooke, in the Pari. Reg. LIX. 305, 320 
emanated. But the attempt did not succeed; * Case of Asahiel Stewns, Gushing, S. & J., 

and the power of each house of cougi-ess, in 217. 



56 LEGISLATIVE ASSEMBLIES. [PaRT L 

any subsequent disqualification of a member, — is by means of a 
petition, (sometimes, but improperly, denominated a remonstrance) 
of some party interested, either as an elector, or as claiming the 
seat in question. Where this mode is adopted, the investigation 
assumes the character of an adversary proceeding before a judicial 
tribunal. The petition should state the facts relied upon mth 
such certainty as to give the sitting member reasonable notice of 
the grounds upon Vv^hich his right is controverted ; — to enable the 
assembly to judge whether the facts alleged are verified by the 
proof; — and, if proved, to determine ^whether they are sufficient to 
require the election to be set aside ; and the petitioner ought not in 
general to be permitted, mthout the consent of the other party, to 
give evidence of any fact not substantially set forth in his 
petition. 

151. An inquiry is sometimes suggested into the right of a 
member to his seat by an inspection of the returns. In Eng- 
land, the returns are not made to the house itself, but to the clerk 
of the crown in chancery, in whose custody they remain, and by 
whom they are brought into the house, whenever required. In this 
country it is supposed to be the general practice, for the returns to 
be made to the assembly itself, in the first instance, or if made to 
any other authority, to be ultimately laid before the assembly for 
its inspection. If any of them are found to be defective in point 
of form, the members thereby returned may be required to procure 
them to be amended ; or if they contain any statement or sugges- 
tion of facts, tending to invafidate the election, an inquiry may 
thereupon be instituted into the merits of the case.^ 

152. The validity of a return or election, unless there is some 
• special order of the assembly, or some provision of law, to the con- 
trary, may be examined at any time during the period for which the 
election purports to have been m.ade ; for an election or return, 
which is not good at fijst, cannot be made so by any lapse of time ; 
ut nullum tempus occurrit regi, ita nee reipubliccE ;'^ but, unless the 
subject is brought for^^ard seasonably, that is, so as to admit of 
its being investigated fuUy and fauiy, it is not usual for an investi- 
gation to take place.3 In the house of commons, at the com- 
mencement of each session, it is ordered, that all persons, who wnSi 



1 Truro, Gushing, S. & J., 5; Lanesborough - Haverford West, Glanville, 13 3. 
and New Askford, Same, 125; Case of Moses F. ^ Sutton, Gushing, S. & J., 80. 
Fearing, Same, 231; Aitlehorougli, Same, 254. 



Chap. VI.] controverted returns and elections. 57 

question any return of members to serve in parliament, do question 
the same within fourteen days next after the order, and so within 
fourteen days next after any new return shall be brought in. 
This order, although merely sessional, that is, renewed every ses- 
sion, yet being invariably adopted, is quite equivalent to a statute ; 
and operates practically to limit the time for the commencement of 
all proceedings for questioning a member's right to his seat.^ 

153. From the time when the commons established their right 
to be the exclusive judges of the elections, returns, and qualifica- 
tions of their own members, until the year 1770, two modes of pro- 
ceeding prevailed, in the determination of controverted elections, 
and rights of membership. One of the standing committees ap- 
pointed at the commencement of each session, was denominated 
the committee of privileges and elections, whose function was to 
hear and investigate all questions of this description which might 
be referred to them, and to report their proceedings, with their 
opinion thereupon, to the house, from time to time. When an 
election petition was referred to this committee, they heard the 
parties and their witnesses and other evidence, and made a report 
of aU the evidence, together with their opinion thereupon, in the 
form of resolutions, which were considered and agreed or disagreed 
to by the house. The other mode of proceeding was by a hearing 
at the bar of the house itself. When this course was adopted, the 
case was heard and decided by the house, in substantially the same 
manner as by a committee. The committee of privileges and elec- 
tions although a select committee was usually what is called an 
open one ; that is to say, in order to constitute the committee, a 
quorum of the members named was required to be present, but aU 
the members of the house were at liberty to attend the committee 
and vote if they pleased. 

154 With the growth of political parties in parliament ques- 
tions relating to the right of membership gradually assumed a 
political character ; so that for many years previous to the year 
1770, controverted elections had been tried and determined by the 
house of commons, as mere party questions, upon which the 
strength of contending factions might be tested. Thus, for 
example, in 1741, Sir Robert Walpole, after repeated attacks 
upon his government, resigned his office in consequence of an 
adverse vote upon the Chippenham election. Mr. Hatsell remarks, 
of the trial of election cases, as conducted under this system, that 

1 In the legislative assemblies of this country, no such restriction exists, it is believed. 



58 LEGISLATIVE ASSEMBLIES. [PaBT 1 

" Every principle of decency and justice v,"ere notoriously and openly 
prostituted, from whence the younger part of the house were 
insensibly, but too successfaUy, induced to adopt the same licen- 
tious conduct in more serious matters, and in questions of higher 
importance to the public vrelfare." I\Ir. George GrenviUe, a dis- 
tmguished member of the house of commons, undertook to propose 
a remedy for the evil, and, on the 7th of INIarch, 1770, obtained the 
unanimous leave of the house to bring in a bill, " to regulate the 
trial of controverted elections, or returns of members to serve in 
parliament." In his speech to explain his plan, on the motion for 
leave, ]Mr. GrenviUe alluded to the existing practice in the foUow- 
ing terms : " Instead of triisting to the merits of their respective 
causes, the principal dependence of both parties is their private 
interest among us ; and it is scandalously notorious that T\^e are as 
earnestly canvassed to attend in favor of the opposite sides, as if 
we were whoUy self-elective, and not bound to act by the principles 
of justice, but by the discretionary impulse of our own inclinations ; 
nay, it is well known, that in every contested election, many mem- 
bers of this house, who are ultimately to judge in a kind of judicial 
capacity between the competitors, enlist themselves as parties in 
the contention, and take upon themselves the partial management 
of the very business, upon which they should determine with the 
strictest impartialitv^" 

155. It was to put an end to the practices thus described, that 
Mr. GrenviUe brought in a bill which met with the approbation of 
both houses, and received the royal assent on the 12th of April, 
1770. This was the celebrated law since known by the name of 
the GrenviUe act ; of which J\lr. Hatsell declares, that it " w^as one 
of the noblest works, for the honor of the house of commons, and 
the security of the constitution, that was ever devised by any minis- 
ter or statesman." It is probable, that the magnitude of the evU, 
or the apparent success of the remedy, may have led many of the 
contemporaries of the measui'e to the formation of a judgment, 
which "was not acquiesced in by some of the leading statesmen of 
the day, and has not been entirely confirmed by subsequent experi- 
ence. The biU was objected to by Lord North, ]\Ir. De Grey, after- 
wards chief justice of the common pleas, JNIr. EUis, jVIr. Dyson, vfho 
had been clerk of the house, and ]\Ir. Charles James Fox, chiefly 
on the ground, that the introduction of the new system was an 
essential alteration of the constitution of parliament, and a total 
abrogation of one of the most important rights and jurisdictions of 
the house of commons. 



Chap. VI.] controvekted returns and elections. 59 

156. The leading features of the system, which was thus intro- 
duced, and which has continued ever since, with certain modifica- 
tions which will be presently alluded to, are two ; first, the estab- 
lishment of tribunals, with exclusive and final jurisdiction to decide 
upon all questions relating to the right of membership, independ- 
ently of the house ; and, second, the selection of the members of 
these tribunals by lot. It is true, that 1he tribunals thus authorized 
were composed of members of the house and were subject individ- 
ually to its authority, but they were sworn to proceed according to 
the laws of the land, and their determinations were not subject to 
the revision of the house. The following is an outline of the 
original system of the Grenville act. A petition being presented, 
calling in question the right of a member to his seat, and a time 
assigned for its consideration, the house proceeded, on that day, to 
select a committee for the trial, by lot. For this purpose, a quorum 
of one hundred members was requisite. If that number was 
present, the names of all who ^vere not entitled to be excueed, from 
their age or other cavise, were put into an urn, and forty-nine of 
them drawn out, one by one, and announced to the speaker by the 
clerk of the house. The parties interested, having been previously 
notified to be in attendance, were then called in, and furnished with 
lists of the forty-nine names so drawn. They were then allowed 
to strike off, alternately, and one by one, the names of such as they 
thought proper to exclude, until the number on the list was reduced 
to thirteen. Each of the parties was then allowed to name a mem- 
ber to be added, who were called the nominees of the respective 
parties. The fifteen members, thus selected, constituted a com- 
mittee for the trial of the case in question. A distinct committee 
was selected for each case. When the committee had been ap- 
pointed, they were sworn by the clerk of the house to the faithful 
performance of their duty, and then proceeded with the trial of the 
case for w^hich they were selected. The committee was authorized 
to compel the attendance of witnesses, and to examine them under 
oath. They were attended by a clerk and short-hand writer ap- 
pointed by the clerk of the house. They elected their own chair- 
man, who, voting in the first instance with the other members, was 
entitled to a second or casting vote, if the votes were equal. 

157. The system of Mr. GrenviUe underwent various modifica- 
tions, from time to time, without any material departure from the 
principles on which it was founded. By the 9 Geo. 4, c. 22, thirty- 
three names only were balloted for, from which each of the parties 
was entitled to strike off eleven, thus reducing the number of the 



60 LEGISLATIVE ASSEMBLIES. [PaRT L 

committee to eleven. At length it began to be perceived, that the 
operation of the system was not so effectual, as its framers had 
supposed, in securing an impartial tribunal ;'the party, whose friends 
in the house attended on the day appointed for a ballot, in the 
greatest force, was likely to have a preponderance in the committee ; 
and thus it was found that the expedient of chance did not operate 
as a sufficient check to party spirit in the appointment of election 
committees. PartiaUty and incompetence were very generally com- 
plained of, in the committees ; and, in 1839, an act passed, (2 & 3 
Victoria, c. 38, called Sir Robert Peel's Act,) establishing a new 
system, upon somewhat different principles, so far as regards the 
appointment of the committee, which increases the responsibility 
of individual members, and leaves but little to the operation of 
chance. 

158. According to the new system, the speaker, at the beginning 
of every session, nominates six members as the " general committee 
of elections," whose names are submitted to the house ; if not dis- 
approved of, within the three next sitting days, the members so 
named become the committee ; if any or all of them are objected to 
by the house, the speaker makes a new appointment in the same 
manner, within three days. The disapproval may be general, in 
respect to the constitution of the whole committee, or specially 
relating to particular members named ; and the speaker, in his new 
appointment, may name again or not, as he pleases, those members 
who have not been specially disapproved. All election petitions 
are referred to this committee, whose duty it is to choose a 
committee for the trial of each, in the manner prescribed in the 
act. 

159. Before the general committee proceed to choose a committee 
for the trial of any petition, an alphabetical list of aU the members 
liable to serve is prepared, under the supervision of the house, and 
referred to the committee. The first duty of the committee is to 
select from this list six, eight, ten, or tw^elve members to serve as 
chairmen of election committees, who are called the " chairman's 
panel," and whose names are reported to the house. When the 
general committee have selected the chairmen's panel, they divide 
all the members remaining upon the list, into five panels, in what- 
ever manner they please, provided that each panel contains, as 
nearly as possible, the same number of members. These panels 
are reported to the house, and the clerk decides by lot at the table, 
the order in which they shall stand, and distinguishes each by a 
number The panels are then returned to the general committee, 



Chap. VL] controvekted returns and elections. 61 

and the committees for trial are chosen from each, in succession, 
according to its number. 

160. When an election petition has been referred to the general 
committee, the latter gives previous notice to the parties of the 
time and place at which the committee will be chosen ; and, at the 
time appointed, proceeds to choose six members from the panel 
standing next in the order of service. The parties in attendance 
are then called in, and the names of the committee are read over to 
them. The members or any of them may be objected to by the 
parties, and, if the objection is sustained, a new appointment is 
made from the same panel. When six members have been chosen 
against whom no objection is sustained, they are notifierl of" ti^^ir 
appointment, by the clerk of the general committee. ^n} member 
thus chosen may attend, if he pleases, before the general com- 
mittee, and be excused from service, or discharged on the ground 
of disqualification, if he can prove his excuse or disqualification, to 
the satisfaction of the committee. If a member is discharged or 
excused, a new appointment takes place, in the same manner as 
before. 

161. When the six members are finally chosen, the chairman's 
panel select one of their own body as the chairman, and notify the 
general committee of elections of his appointment. The general 
committee add this name to the other six, and communicate it to 
the parties, who may object to the chairman as well as to the other 
members of the committee. At the next meeting of the house, the 
seven members are required to attend in their places, and the gen- 
eral committee report their names to the house. The members are 
sworn at the table by the clerk, " well and truly to try the matter 
of the petition referred to them, and a true judgment to give, 
according to the evidence." The time for the meeting is then 
fixed, and the committee being duly constituted and organized is 
ready to proceed. 

162. The mode of proceeding in the committee, and the inciden- 
tal powers conferred upon it, do not require to be stated in this 
place ; they are substantially the same as in other committees, with 
the exception, that election committees are authorized by law to 
administer oaths to witnesses, and will be more appropriately con- 
sidered in connection with the general subject. When a case is 
concluded, and the committee has had due deliberation upon the 
merits of it, it is required to decide distinctly : — first, whether the 
petitioner, or the sitting member, or either of them, is duly 
returned, or elected ; or second, whether the election is void ; or, 

6 



62 LEGISLATIVE ASSEMBLIES. [PaRT 1. 

third, -^^hether a new writ ought to issue. The determination of the 
committee upon these points is final between the parties ; and the 
house, on being informed of it, carries it into execution. 

163. It will be perceived from the foregoing account of the con- 
stitution of election committees, as now regulated by law, that the 
system of the Grenville act has undergone no other substantial 
change than in the mode of appointing the committee. Whether 
the present mode will be effectual to secure a competent and at the 
same time impartial tribunal remains to be determined by experi- 
ence. A committee, selected by competent persons, acting under 
a sense of public duty, wUl be more likely to possess the requisite 
ability, than one selected by lot ; and so far, doubtless, the present 
is an improvement upon the old system. Impartiahty in the com- 
mittee can only be secm-ed by the appointment of members, who, 
though they belong to one or another of the political parties, shall 
yet be entirely independent of party in the performance of a judi- 
cial duty ; and herein it is perhaps equally true, that the most 
proper persons in the assembly are more lili:ely to be selected by a 
competent committee, than by lot.i 

164. In the constitution of the United States, and in the greater 
number of the State constitutions, it is merely provided, that 
" each house shall be the judge of the elections, returns, and quali- 
fications of its own members." In that of Massachusetts, there is 
a clause, that each house " may try and determine all cases where 
their rights and privileges are concerned, and which, by the consti- 
tution, they have authority to try and determine, by committees of 
thek own members, or in such other way as they may respectively 
think best." In the constitution of Pennsylvania, it is provided, 
that " contested elections shall be determined by a committee, to 
be selected, formed, and regulated, in such manner as shall be 
directed by law." The constitutions of Kentucky, Ohio, Lou- 



1 This subject has occupied more attention, This admirable work -was first published in 
than perhaps was necessary for the purpose 1775, from the author's manuscript, with a 
immediately in yiew ; partly on account of historical introduction, giying an account of 
its n-reat importance; but, chiefly, for the the ancient right of determining cases of con- 
reason that, it seemed necessary to explain troverted elections. Since the new system 
fully the constitution of those tribunals, went into operation, the cases haye been 
whose decisions form a distinct branch of reported and published in seyeral different 
English jurisprudence. Prior to the passing collections, fonning together quite a body of 
of the Grenville act, one small collection only what may be called election jurisprudence. 
of cases of election law had been made. Two volumes only have hitherto been pub- 
that of Mr. Sergeant GlanviUe, who was lished in this country, one of cases in the 
chairman of the committee of privileges and congress of the United States, and the other 
elections in the 21st and 22d years of James I. of cases in the legislature of Massachusetts. 



Chap. VI.] controverted returns and elections. 63 

isiana, Florida, Mississippi, Alabama, Iowa, and Texas, after 
declaring, that " each house shall be the judge of the qualifications, 
elections, and returns of its members," add, " but a contested elec- 
tion shall be determined in such manner as shall be directed by 
law." In Missouri, the constitution declares that "the general 
assembly shall have power to pass laws regulating proceedings in 
cases of contested elections of senators and representatives." 
These different constitutional provisions have led to the introduc- 
tion of corresponding proceedings in the trial of controverted elec- 
tions. In Pennsylvania, a system appears to have been estab- 
lished, substantially the same with that of the Grenville act. In 
some, if not in all of the States last mentioned, the trial of contro- 
verted elections is more or less regulated by law ; without 
however, the establishment of any new tribunal. Li Massachu- 
setts, the authority given to the two houses to try controverted 
elections by committees of their own members, or in such other 
way, as they may respectively think best, has never been exercised. 

165. In all the legislative assemblies of the United States, there- 
fore, except those in which the subject is particularly regulated by 
law, questions relating to the rights of membership are conse- 
quently to be investigated and determined in the ordinary course of 
proceeding. Two methods only appear to be in use, namely : first, 
a trial at the bar of the assembly, in which the case is investigated 
directly and decided upon by the assembly itself ; and, second, a 
preliminary investigation by a committee, and a final determi- 
nation by the assembly, on their report.^ These modes of pro- 
ceeding will be explained hereafter. When the latter mode is 
pursued, it is the duty of the committee to report the state and 
particulars of the proof, as well as their conclusion thereupon ; the 
house not being concluded by the opinion of the committee in 
matter of fact, any more than in matter of la-w.^ 

166. It was for a long time the practice of the house of commons, 
on the decision of a controverted election or return, to require the 
attendance of the clerk of the crown in chancery with the return in 
question, and, also of the returning officers by whom it^was made, 
and to direct the latter to amerid the return agreeably to the 
decision of the house, or to take off the original return from the 
file, and substitute a new one. At the present day, the attendance 
of the returning officers is dispensed with, and the amendment or 

1 Ramsny v. Smith, Clarke & Hall, 23; ing, S. &:J., 3; Vassalborovgh, Sume, 4; TTo 
Moore v. Leicis, Same, 128; Cumbridye, Cush- burn, Siime, 7. 

2 Norfolk, Glanville, 4 a. 



64 LEGISLATIVE ASSEMBLIES. [PaRT L 

substitation is made by the clerk of the crown. In our legislative 
assemblies, it is believed, the order or decision of the house is of 
itself generally regarded as sufficient, without any actual alter- 
ation or amendment of the return. 



Section II. — Of Rights of Membership, as affected by the 
Form or Substance of the Return. 

167. It has abeady been stated, that the right of a member to 
his seat may depend upon, or be involved in, the return, either in 
form or in substance, without regard to the election. Cases of 
this description are now to be considered. 

168. If a return is good in substance, it is not to be impeached 
or set aside for want of form, or for sm-plusage in matter ; as, for 
example, where there are two opposing sets of returning officers in 
a constituency entitled to tw^o members, and each set makes a 
return of two members, one of whom is the same in both returns, 
the person so returned is duly returned.^ 

169. But, if a return is absolutely and irreconcilably repugnant, 
it is utterly void ; as, if three members are returned from a constit- 
uency entitled to only two, and all of them are inserted in one 
return, or each of them in a separate return, or tT\^o of them in one, 
and the third in another, without any thing in either case to show 
the order or succession in vi^hich they M'ere chosen ; then, although 
the election of one or more of them may be good, yet, for want of 
a certain and sufficient return, whereby the person or persons duly 
elected may be designated, the house cannot take any notice 
thereof.2 

170. Where returning officers make a mistake in the name of 
the person elected, and, in consequence thereof, return one "who 
was not chosen, the mistake may be corrected, either upon the 
petition of the person really elected, or on motion merely,'^ or, it is 
presumed, upon the representation of the returning officers. Thus 
where John Maynard was elected, but, by mistake, Charles May- 
nard was returned, the return was amended upon the petition of 
the former, who was thereupon admitted to his seat.^ 

171. Where the returning officers, by mistake, consider votes 
which are really given for one person as given for two or more, as. 

1 Soutliwarh, Glanville, 9. ^ Chambers's Dictionary, Christian Nanaes. 

2 Southwarh, Glanville, 9, a; Pontefract, * Chippenham, Glam-iUe, 47, 59. 
Same, 230. 



Chap. VL] contko verted returjsts and elections. 65 

for example, where they regard votes given for A. B. and for A. B., 
Junior, as given for two persons ; ^ or, where, in copying the lists 
of votes to be transmitted by the receiving officers to the returning 
officers, a mistake is made in the name of any of the persons voted 
for, so that a part of the votes given for one appear to be given for 
another person, thereby apparently defeating the election of the 
former;^ and, in consequence of such mistakes, in either case, a 
person is returned who was not In fact elected, the return will be 
set aside, and the person really elected admitted as a member. 

172. Where a return is obtained, by means of some fraud or 
trick, practised by or with the consent of the returning officers;^ 
or where they are intimidated by riots and disturbance from 
making a return of the person duly elected, and are compelled to 
return another;^ or where they are corrupted by bribery to make a 
false return;^ in all these cases, the return will be set aside, and 
the person duly elected admitted to a seat.^ 

173. Where a constituency consists of several municipal cor- 
porations, the votes of which are required by law to be transmitted 
to the returning officers, on or before a certain time fixed, a valid 
return may be made upon the votes received at that time; but, 
upon proof that other votes were received at the election, and not 
duly transmitted to the returning officer, sufficient to change the 
election, the return will be set aside, and the person really elected 
admitted to the seat." 

174. As it is the duty of returning officers, in the first instance, 
to decide upon the result of an election, and, if, in their judgment, 
an election has taken place, to make a return of the persons 
elected ; where they undertake to relieve themselves from this 
responsibility, by making a conditional return, that is, by stating 
certain facts, and referring the question of their legal operation to 
the judgment of the body to which the return is made, the return 
will be received as an unconditional one ; and the only effect, if 
any, of the special statement of facts will be to give rise to an inves- 
tigation of the merits of the election.^ 

1 Turner v. Baylies, Clarke & Hall, 234; * Tlfoj'/ie^fe, Douglass, I. 147. 

Williams v. Bowers, Same, 263. Willouyhhy v. ^ Rogers on Elections. 246; Fourth Institute, 

Smith, Same, 265; Guyon v. Snge, Same, 348; 23; D'.Ewes, 183. 

Hugunhi V. Ten Eyck, Same, 501 ; \Vri<jlil v. * As to riots and bribery, see the section oa 

Fisher, Same, 518 ; Lynn, Gushing, S. & J., 236. controverted elections. 

^ Buot V. Adams, Clarke & Hall, 291; ^fnl- ^ Spaulding v. Afead, Clarke & Hall. 157; 

lary v. Merrill, Same, 330, 331 ; ColJen v. Mullary v. Merrill, Same, 334. 

Sharpe, Same, 369. s Rogers on Elections, 41 ; Beernlston, Comra. 

3 Male on Elections, 338; Fourth Institute, Jour. I. 14; Aitlebormgh, (Juslfiing, S. & J., 

49; Glanville, 19. 254. 

6* 



66 LEGISLATIVE ASSEMELIES. [PaET I. 



Section III. Of Electio:s"S of, aistd Votes given foe, dis- 
qualified Persons. 

175. If an election is made of a person, who is ineligible, that is, 
incapable of being elected, the election of such person is absolutely- 
void ; even though he is voted for at the same time with others, 
who are eligible, and "v\'ho are accordingly elected ; ^ and this is 
equally true, whether the disability is known to the electors or 
not ; whether a majority of all the votes, or a plurality only, is 
necessary to the election ; and whether the votes are given orally 
or by baUot. 

176. The principle above applies equally, where the constitution 
or law points out, among other eligible persons, the particular can- 
didates to be voted for ; in which case, votes given for other persons 
are void. Thus, the constitutions of Maine and Massachusetts 
providing, that in case of a failure to elect senators, at the general 
election, the deficiency shall be supplied on the day of the meeting 
of the legislature, by such senators as shall be elected, and the 
members of the other branch, from among the persons voted for and 
not elected as senators, aU votes given on such occasions, for any 
other than the candidates designated by law, though otherwise 
eUgible, are thrown away. 

177. In England, where a plurality only is necessary to an elec- 
tion, and -u-here the votes are given orally, it is also held that if the 
electors have notice of the disquahj&cation of a candidate, every 
vote given for him afterwards, will be thrown away, and con- 
sidered as not having been given at all.^ The effect of this rule is, 
that not only will the election of a disqualified person be held 
void ; but if such election takes place after notice of the disquahjS.- 
cation is given to the electors, the candidate having the next 
highest number of votes vnR be elected.^ This doctrine, however 

1 Male on Elections, 336. Jour. XVIII. 672 ; FlintsMre, Peck-n-ell, L 

^ King V.Monday, Cowper's Reports, 537; b26; Souihwarh {2d), CliSoTd, ISO; Canterbury 

RexY. HawMns, East's Reports, X. 211, and (2d), Clifford, 353; Kircudbright, Luders, I. 

cases there cited; Dow's Reports, II. 124; 72; Radnorshire, Peckwell, 1.496; Leomin- 

Claridge v. Evelyn, Bamewall and Alder- ster, Corbet & Daniel, 1; Leominster, Rogers, 

son's Reports, V. 81; iJea; v. Cbe, Heywood on app. ix. ; Cork County, Knapp & Ombler, 

County Elections, 538; Douglass's Reports, 406; Belfast, Falconer & Fitzherbert, 603; 

398, n. ; Rex v. Blissell, Hevwood, 537 ; Rex v. Rogers on Elections, 224. See also Male on 

Parry, East, XIV. 549 ; Rex v. Bridge, Maule Elections, 336, and Abingdon, Douglass, L 

& Selwyne's Reports, I. 76. 419. 
8 Fife, Luders, I. 455; Coclcermouth, Coram. 



Chap. VL] controverted returns and elections. 67 

hard it may seem, is founded in the familiar principle, that every 
man is bound to know the law with reference to any act which he 
undertakes to do ; and, consequently, that when an elector is 
apprised of the fact of disqualification of a candidate, and notwith- 
standing gives his vote for him, the elector takes upon himself the 
risk of losing his vote, if his construction of the law turns out to be 
wrong.i 

178. In this country, it is equally true, that the election of a dis- 
qualified person is absolutely void ; and, in those States where a 
plurality elects, and where the votes are given orally, as in Eng- 
land, votes given for a candidate after notice of his disqualification 
are thrown away, and the candidate having the next highest 
number of votes is elected. 

179. In reference to elections by ballot, in which secrecy is the 
distinguishing feature, and, in which, consequently, neither the 
returning officers, nor the electors themselves, are supposed to 
know for whom the votes are given, until the result is declared ; 
it seems not unreasonable, to consider the votes for inefigible can- 
didates to be thrown away, in all cases, and the opposing candi- 
date elected, where the electors know or must be presumed to 
know the disability ; and, in all cases where there is no such actual 
or presumed knowledge, to hold the whole proceeding merely 
void. 

180. In reference to elections, in which an absolute majority is 
requisite to a choice, and, in which, consequently, the whole num- 
ber of votes received is first to be ascertained, votes given for ineli- 
gible persons must of course be excluded from the enumeration ; 
for the reason, that as the whole balloting would be void, and all 
the votes excluded, if they were all for such candidates, it would 
be preposterous to enumerate such votes, where they constituted a 
part only of the votes given in. If, in consequence of such exclu- 
sion, the result of the election would be different from what it 
would otherwise be, the whole proceeding must perhaps be held 
void or valid, according as the electors have actual or presumed 
knowledge of the ineligibility of the persons for whom the excluded 
votes are given. 

Section IV. — Of Elections as affected by Proceedings inju- 
rious TO THE Freedom of Election. 

181. The great principle, which lies at the foundation of all 
elective governments, and is essential indeed to the very idea of 

• Ro^en oj Elections, 22G. 



68 LEGISLATIVE ASSEMBLIES- [PaRT L 

election, is, that the electors shall be free in the giving of their suf- 
frages. This principle was declared by the English parliament, 
with regard to elections in general, in a statute of Edward I.,^ and 
with regard to elections of members of parliment, in the Declara- 
tion of R,ights.2 The same principle is asserted or implied in the 
constitutions of all the States of the Union. Freedom of election 
is violated by external violence, by which the electors are con- 
strained, or by bribery, by which their will is corrupted ; and, in aU 
cases, where the electors are prevented, in either of these ways, 
from the fr-ee exercise of their right, the election wiU be void 
without reference to the number of votes thereby affected. 

1. Riots. 

182. Wherever the freedom of election is violated by any riot, 
disturbance, or tumult, at the poUs, by which the proceedings are 
actually interrupted ; although the returning officer may not thereby 
be prevented fr-om completing the poU and making a retm-n, the 
election will be void.^ 

183. A riot may proceed by actual force or violence, or by a dis- 
play of numerical strength, accompanied with threats ; and, though 
no actual violence takes place, yet if the conduct of the parties 
engaged is of such a character as to strike terror into the mind of a 
man of ordinary firmness, and to deter him from proceeding to the 
poU, the election can hardly be said to be free.* 

184. It is necessary, also, to the existence of such a riot as wiU 
avoid an election, that it should be founded on system, or, at least, 
upon premeditation ; for a casual affray, or an accidental disturb- 
ance, without any intention of overawing or intimidating the elec- 
tors, cannot be considered as affecting the fr-eedom of election.-^ 

185. And, where the proceedings at an election are interrupted 
by riots, the election . wiU be held void, without reference to the 
number of votes thereby affected.^ 

2. Briber^/. 

186. The freedom of election may also be violated by corrupting 
the wiU of the electors, by means of bribery, as well as by intimi- 
dating or preventing them by external violence from exercising the 

1 3 Edward I. chap. 5. The language is : a Doiaglass, IT. 403. 
' Because elections ought to be free, the king ^ Male on Elections, 125, 337. 
commandeth, upon great forfeiture, that no * Nurfolh Petition, Comm. Jour. IX. 631 ; 

man, by force of arms, nor by malice or men- Hevwood, 546. 
acing, shall disturb any to make free elec- '" Rogers on Elections, 242. 
tion." ° Eogers on Elections, 243. 



Chap. VI.] controverted returns and elections. 69 

right of suffrage.! According to the definition given by a learned 
writer on the law of elections:'- — "Wherever a person is bound 
by law to act without any view to his own private emolument, and 
another, by a corrupt contract,^ engages such person, on condition 
of the payment or promise of money or other lucrative considera- 
tion, to act in a manner which he shall prescribe, both parties are, 
by such contract, guilty of bribery." 

187. In the application of this definition to cases of controverted 
elections, it must be made to appear, first, that the act of bribery 
was at least inchoate, if not complete, before the election ; for a 
distribution of money afterwards, unless coupled with an act done 
or promise made before, however it may induce suspicion, will not 
be sufficient to raise a presumption in a court of justice ; * and 
second, that the bribery was committed by the candidate himself, 
or by some one on his behalf, that is, employed by him ; for, other- 
wise, it would be in the power of any officious or ill designing per- 
son to avoid an election, by means of an act of bribery committed 
by himself for thp very purpose.^ 

188. The actual giving of money to a voter is only one form of 
consideration for the corrupt contract of bribery. The offence is 
equally committed by treating or entertainment of any kind ; ^ 
payment of travelling or other expenses, or for loss of time;'^ or 
(in England) advancing money to purchase the freedom of the cor- 

1 Male on Elections, 387, 347; Donglass, II. town to elect the whole number (being six) of 
403 ; See Rogers on Elections, 245. representatives, to which it was entitled by 

2 Lord Glenbervie, in his Notes to St. Ives, law, of a particular party, gave a bond, for the 
Douglass, II. 400. use of the inhabitants, with a condition, that 

3 Mere solicitation, on the part of an elector, the whole expense of six members should not 
unaccepted by the candidate, or a mere offer, exceed the pay of two, and six members of the 
on the part of a candidate, unaccepted by the party in question were elected accordingly, 
voter, will not constitute bribery. See Rogers the election was adjudged void, although the 
on Elections, 252, 253. members elected had no agency in procuring 

* Male on Elections, 347. See Sudbury, the bond to be given. 

Douglass, II. 137 ; Cirencester, Peckwell, I. " Middlesex, Peckwell, II. 31 ; Londonderry, 

466; Dublin, Falconer & Fitzherbert, 204; Perry & Knapp, 278; Corbet & Dan. 255; 

Lord Huntiufjtower v. Gardiner, Dowling & Herefordshire, Peckwell, I. 185; Southwarh, 

Ryland's Reports, II. 450; Barnewall & Cress- Clifford, 25; Berwich, Peckwell, I. 404; MonU 

well's Reports, I. 297. rjomery, (2d,) Perry & Knapp, 464; Mansjield, 

s Male on Elections, 352, e. It does not Gushing, S. & J., 17. 

seem to be necessary, in all cases, that the ? Newport, Comm. Jour. XIII. 112 ; Ipswich, 

persons returned should participate in the brib- Luders, I. 21 ; Berwick, Peckwell, I. 401 ; Dur- 

ery, any further than by taking advantage ham, Peckwell, II. 78; Grantham, Comm. 

ot it; as, for example, where the whole con- Jour. LXXV. 443. See Bremridge v. Camp' 

stituency is iiffected by the improper influence, bell, Carrington & Payne's Reports, V. 186; 

In the case of Gloucester, in Massachusetts, Baynturn v. Cottle, Manning & Ryland's Re- 

(Cushing, S. & J. 82,) where it appeared that ports, I. 265. 
^rtain individuals, with a view to induce the 



70 LEGISLATIVE ASSEMBLIES. [PaET I. 

poration for a voter, or to pay for his admission or enrolment.^ In 
this country, the pajonent of a tax assessed upon an individual, 
vith a vievv^ to enable hun to become a voter, seems equivalent to 
advancing money to purchase the freedom of a corporation for the 
same purpose, and -^^ould doubtless be considered to have the same 
effect. So, a wager between t^vo voters, or between a voter a.nd 
another person, on the event of an election, amounts to bribery.^ 
In aU these cases, in order to constitute bribery, it is, of course, 
necessary that the other ingredients of that offence should exist. 
■^-^ 189. In England, before the enactment of any of the statutes on 
the subject, bribery was not only a high misdemeanor, at common 
law, punishable by indictment, or information;^ but when prac- 
tised at elections of members of parliament, was also a breach of 
parhamentary privilege and punishable accordingly ; '^ and it is an 
offence of so heinous a character, and so utterly subversive of the 
freedom of election, that, when proved to have been practised, 
though in one instance only, and though a majority of unbribed 
voters remain, the election will be absolutely void.-^ ' This severity 
is justified on the ground, that, in a country where bribery is so 
common as to form the subject of investigation in a large propor- 
tion of election cases, it is absolutely essential to the preservation 
of the freedom of election.'^ 

190. Whether the same effect v^ould be held to foUow in this 
country may admit of some question, or pe^-haps depend upon the 
degree of guilt attached in the several States to the offence of brib- 
erv. This offence, though much less common here than in Eng- 
land, is nevertheless considered as so subversive of the freedom of 
election, and so disgraceful to the parties concerned, that it is made 
an express ground of disqualification in the constitutions of several 

\ of the States. In aU such States, therefore, whatever may be the 
case in others, there can be no doubt, that an election tainted with 
bribery ought to be held void, without reference to the number of 
votes thereby affected. 

191. The effect of bribery, in working a disqualification, is differ- 
ently stated in the several constitutions. By those of Indiana, and 

1 Leicester, Comm. Jour. XV. 136 ; Bayntum ^ Rex v. Pitt, Burrow's Reports, 1838 ; Wm. 
V. Cottle, Manning & Eyland, L 265. But see Blackstone, L 382. 

also Worcester, Corbet & Daniel, 173, and * Bletchingley, Glanville, 41. 

Bristol, Douglass, I. 243. ^ St. Res, Douglass, 11. 389; Coventry,'? eck- 

2 See Allen v. Hearne, Term Reports, I. 56; well, I. 97; Male on Elections, 3 to. 
Jones T. Randall, Cowper's Reports, 39 ; Anon- ^ Male on Elections. 345. 
ymous, Lofft, 552, and Rogers on Elections, 

258, note (a). 



CnAP. VL] CONTROVERTED RETURNS AND ELECTIONS. 71 

Tennessee, the act alone disqualifies ; by those of Kentucky, Lou- 
isiana, Mississippi, Alabama, Georgia, Rhode Island, Arkansas, 
Texas, California, and Missoui-i, a conviction is also requisite ; 
while, by the constitutions of Massachusetts and New Hampshire, 
a conviction is not only necessary, but it must be in a due course 
of law. In Tennessee, the disqualification is for six years ; in the 
States secondly above mentioned, including Indiana, the disqualifi- 
cation is limited to the term of office for which the election is made ; 
and in the remaining States it is perpetual. In all these States an 
offer to bribe is as much a disqualification as bribery itself. In the 
constitutions of New Jersey, New York, Maryland, Mississippi, 
Missouri, Arkansas, Texas, and California, authority is expressly 
given to, or required to be exercised by, the legislative power to 
exclude from office all persons guilty of bribery, or crimes of a simi- 
lar character. 

192. The right of a legislative assembly, in those States where a 
conviction is necessary to disqualify, to set aside an election for 
bribery, where the majority is not thereby affected, before a convic- 
tion at law has taken place, seems to be clear ; for, in the first place, 
the trial of a controverted election is a judicial proceeding; second, 
annulling an election for bribery, in the case supposed, is analogous 
to expulsion, which is the peculiar and appropriate punishment for 
bribery, by the common law of parliamentj^ and, third, it might 
otherwise happen, that, by reason of there being no judicial courts 
in session, at the proper time, the constitutional provision would 
become entkely nugatory, or partially ineffectual. 

Section V. — Op Elections as affected by the Qualifications 
AND Conduct of the Returning Officers. 

193. In England, where, as will be recollected, elections take 
place in virtue of precepts, it sometimes happens, that persons who 
are not the proper returning officers get possession of a precept, by 
Some indirect means or otherwise, and hold an election. In such 
cases, if an election is fairly made, the proceedings will be con- 
firmed; but if the usurpation is wilful, though the election will not 
thereby be invalidated, the officers will be subject to censure and 
punishment by the house.^ 

194. In this country, — precepts not being ordinarily the mode 
of proceeding, — the rule appears to be only so far adopted, that 

1 Male on Electious, 84, 85. 



72 LEGISLATIVE ASSEMBLIES. [PaET I, 

persons assuming to be returning officers and acting as such are 
presumed to be legally elected or appointed, and to be duly qualified 
for the discharge of their duties, until the contrary is made to 
appear ; in which case, their proceedings in reference to elections 
"^nll be set aside. Where an election takes place, in pursuance of 
a precept, the English rule seems applicable. 

195. It is the invariable practice, therefore, mth us, to allo^^?" the 
■ authority and qualihcations of returning officers to be inquned into ; 

and, if it appears, that persons assuming to act as such are not duly 
elected, as, if, in Massachusetts, where the selectmen are returning 
officers, an election is conducted by persons who are not duly 
elected selectmen ; ^ or, if, in Georgia, where three magistrates are 
required to preside at elections, an election is conducted by three 
persons, one of whom only is a magistrate ; ^ the proceedings of the 
persons thus assuming to act will be void. 

196. So, if retm-ning officers, being duly elected, refuse or neg- 
lect to take the oaths required by law, to qualify them to act in that 
capacity, their proceedings will be void ; ^ but where the law re- 
quired that returning officers, before entering on the execution of 
the duties of then office, should take an oath faithfully to discharge 
the duties of the same, respecting elections and returns, and they 
were s^^orn accordingly, after issuing the warrant calling the meet- 
ing, and before proceeding to the election, the requisitions of the 
law "were deemed to be substantially complied "^dth.* 

^ 197. If returning officers act in so illegal or arbitrary a manner, 

as to injure the freedom of election, the whole proceedings "wdU be 
void. Thus, in Massachusetts, where members of the house of 
representatives are chosen by the towns in town meeting, if the 
selectmen, ^^ho preside and are the returning officers, refuse to put 
proper motions, as, for instance, as to the number of representatives 
to be chosen, or for an adjournment; or refuse to allo^v^ the discus- 
sion of any proper question ; or close the poUs without giving 
reasonable notice beforehand ; an election effected under such cir- 
cumstances will be void.'5 

198. An election may be controverted, on the ground of the 

1 Adams, Gushing, S. & J., 13; Harwich, Same, 703; Eliot, Gushing, S. & J., 166. See 

Same, 38; Troy, Same, 56; Chester, Same, Tl'bJurra, Gushing, S. & J., 302. 

' 238. * Eliot, Gushing, S. & J., 166. 

- JacTcson x. Wayne, Clarke & Hall, 47. ^ Rehoboth, Gushmg, S. & J., 127; Roxbury, 

3 McFarland v. Purviance, Glarke & Hall, Same, 157; Nantucket, Same, ISO; Nantucket, 

131; McFarland v. Culpepper, Same, 221; Sharon, Same, 195; Boston, Same, 221; 

Eaetan v. Scott, Same, 272 ; Draper v. Johnston, Charlestown, Same, 226 ; Gloucester, Same, 

207. 



Chap. VI.] controverted returns and elections. 73 

illegal reception or illegal rejection of votes by the returning officers ; 
and, in such a case, if it is proved, that votes sufficient to change 
the majority have been illegally received, or illegally rejected, the 
election will be set aside, and the candidate having the majority 
wiU be admitted ; ^ but neither the reception of illegal nor the rejec- 
tion of legal votes will have this effect, unless the majority is thereby 
affected.^ 

199. When the voting is by ballot, a voter is not compellable to 
disclose the character of his vote, or to testify for whom he voted, 
on a given occasion. When it becomes necessary, therefore, on the 
trial of a controverted election to show for whom votes by ballot 
were given, and such a voter refuses to appear, or appearing refuses 
to disclose for whom he voted, evidence is admissible " of the 
general reputation of the political character of the voter, and as to 
the party to which he belonged at the time of the election." ^ 

200. Attempts have been sometimes made by rival candidates 
to get rid of troublesome questions, at an election, by entering into 
an agreement beforehand, touching the right of certain classes of 
persons to vote ; but, it is settled, that such an agreement cannot 
have the effect either to diminish or enlarge the elective franchise, 
as established by \aM\^ 

201. The duties of returning officers in conducting elections 
being prescribed by the statute laws of the several States, it is 
obviously impossible to present any thing more than the general 
rule, as to how far a neglect or misconception of duty on their part 
will affect the validity of an election ; and, herein, the leading 
principle, sanctioned both by law and common sense, undoubtedly 
is this, that where the provisions of law, whatever they may be, 
are imperative or peremptory, any neglect of returning officers to 
observe them will render their proceedings void ; but that where 
the law is merely directory, no neglect, or mistake, or even 
improper conduct or irregularity on their part, will be fatal, though 
frequently made punishable by law, if in other respects, there has 
been a substantial and good election.^ Provisions of law, which 
are introduced only as affirmative propositions, are commonly, 
unless essential in their character, merely directory ; but if accom- 

1 Hey wood on County Elections, 500 ; West- ^ Cong. Globe, XVI. App. 456. 

er», Cusliing, S. & J., 144; Tyrinffham, Same, « Glanville, 108; Porterjield v. M'Coy, 

266; Charlemont, Same, 261; Dighton, Same, Clarke & Hall, 269 ; Draper y. Johnston, Same, 

175; Shrewsbury, Same, 275; Sheffield and 706. 

Mount Washington, Same, 46; Case of John 5 jjgywood on County Elections, 511; Cot 

Clapton, Clarke & Hall, 101. den v. Sharpe, Clarke & Hidl, 369. 

2 Case of Thomas Lewis, Clarke & Hall, 128. 



74 LEGISLATIVE ASSEMBLIES. [PaRT I. 

panied also by negative words, or their equivalent, they are, of 
course, without regard to their character, always peremptory. 

202. In the application of this principle, much embarrassment 
will be prevented, by keeping in view these tvv'o considerations, 
first, that it is the language rather than the nature of a statutory 
provision, T\'hich makes it imperative or directory ; and, second 
that whether a neglect of the requisitions of a directory statute vAl] 
be fatal or not to the proceedings does not depend so much upon 
the nature of the neglect, as upon its influence in producing the 
result of the election. Irregularities in the proceedings of retuniing 
officers, though not sufficient of themselves to authorize a pre- 
sumption of fraud or con-uption, are nevertheless always looked 
upon as strong corroborative circumstances. 

203. The foUowdng cases are selected from a much greater 
number as examples of kregularities in the conduct of returning 
officers, in the observance of the requisitions of statutes, "U'hich 
have been held to be merely directory statutes, and -^^hich have 
been considered as insufficient to invalidate elections, namely : 
where the ballot box was not locked, as required by law, but was 
only tied Vidth tape, and vi'as also placed in the custody of a person 
not authorized to have charge of it ; ^ where instead, of "a box 
locked or otherwise well secured," a gourd " carefully stopped and 
tied up in a handlcerchief " T\'as used;^ vv^here there was an omis- 
sion to give the notices requii-ed by law to tu^o inconsiderable 
places within an election district ; '^ where the returning officers did 
not meet for the purpose of making their return untU after the time 
appointed by law ; * where the poll clerks appointed by the sheriff 
were not sworn until after the election,^ or were not sworn at 
aH ; ^ where the number of votes, being required by law to be set 
down in v^iiting, was set down in figures ; ' where the return of 
votes Vv^as unsealed, instead of being sealed up, as required by 
law ; ^ where the votes were returned after the time prescribed by 
law ; ^ where the opening of the m.eeting was delayed for two 
hours beyond the time fijced ; ^^ where the officers presiding at an 
election, in the belief that illegal votes had been received, stopped 



1 Van Rensselaer Y. Van Allen, Clarke & ^ PorterfieldY. McCoij, GlarkQ &:T^a\\ 2^7. 

Hall, 73. 8 Colchester, Peckwell, I. 503, 506, 507. 

^ Arnold y. Lea, Clarke & Hall, 601. ' Laston v. Scott, Clarke & Hall, 272. 

8 Lyon V. Smith, Clarke & Hall, 101; Orkney ^ Mallary v. Merrill, Clarke & Hall, 328. 

# Shetland, Fraser, L 369; but see Seaford, ^ Draper \: Johnston, Clarke & Hall, 703; 

Luders, HI. 3. Spaidding v. Mead, Same, 157. 

* Case of David Bard, Clarke & Hall, 116. w Standish, CusMng, S. & J., 82. 



Chap. VL] controverted returns and elections. 75 

the balloting and commenced anew ; ^ where the warrant, calling 
the meeting for an election did not specify the time when the poll 
would be opened ; ^ where the poll was not kept open each day 
the nmnber of hours required by \av^.^ In all these cases, there 
being a substantial and good election notwithstanding the irregu- 
larities complained of, the proceedings \vere not invalidated. 

204. The foregoing principles, though established with reference 
more particularly to municipal corporations, each of which is a 
constituency by itself, are equally applicable to two or more such 
corporations united together into one constituency or election dis- 
trict ; but, if the votes of any one or more of the corporations so 
united are set aside for any cause whatever, the election will not 
be avoided, unless the majority of votes in the whole district is 
thereby changed.* 

205. An election being a choice made by the requisite number 
of electors exercising their right of suffrage ;^ it is an established 
rule, that, when an election has been effected, the right of the elec- 
tors is exhausted, and they have no further power in the matter, 
either to revoke the election, or to make a further choice. Thus, it 
has been held, in Massachusetts, that Avhere a valid election had 
been made, it could not be rendered void by a subsequent recon- 
sideration of the choice ; ^ and, on the same principle, that an 
election of a member at one meeting could not be superseded and 
rendered void, by the election of another person, at a subsequent 
meeting." 

206. It is also an established rule, that, if the proceedings of 
electors, at a meeting for an election, are in fact void, and do not 
constitute a choice, they cannot be rendered valid, or turned into 
an election, by any subsequent proceeding. Thus, it has been 
held, that where an election was in fact illegal and void, it could 
not be rendered vaHd, by a refusal of the electors, acting upon the 
supposition of its validity, to reconsider the supposed choice;'^ so, 
where an election was illegal, by reason of its having been made 
after a vote of the town not to choose, it could not be made a good 
election, by a reconsideration of that vote.^ 

1 Chafhnm, Gushing, S. & J., 423. Arnold v. Lea, Same, 601 ; Draper v. Johnsion 

2 Wcsl BoylstoH, Gushing, S. & J., 394. Same, 703. 
^Colchester, Peckwell, I. 506; Limerich, ^ ]\i;^]e o,j Elections, 100. 

Pony & Knapp, 355; Gockburne & Rowe, ^ /"rtx/oM, Gushing, S. & J., 20. 
288; Wiriokk, Gushing, S. c& J., 401. 7 Dresden, Gushing, S. & J., 151. 

* McFurland v. Purviance, Glarke & Hall, 8 Chesterfield, Gushing, S. & J., 7. 
131; McFarland v. Culpepper, Same, 221; » Wuislow, Gushing, S. & J., 201; Sou^ 

bridge. Same, 215. 



76 LEGISLATIVE ASSEMBLIES. [PaET 1 

207. bo, if the returning officers, or judges of the election, upon 
receiving, examining, and counting the votes, decide that there is 
no choice, and upon that decision, a second balloting takes place, 
at which an election is effected, and a return is made accordingly ; 
if there was in fact an election on the &st balloting, the election on 
the second \\'ill be set aside, and the person first elected will be 
admitted. If, in such a case, the returning officers discover their 
mistake, or become con\T-nced of their error, before maldng a return, 
they will be justified in retm-ning the person really elected, in the 
first instance. 

208. If an election is made on condition, as where a certain per- 
son was elected a burgess, provided certain other persons should 
be chosen knights of the shire, the condition is void, as inconsist- 
ent with the freedom of election.^ 

209. Where a constituency consists of several municipal cor- 
porations or districts, the officers of which receive the votes and 
make returns of them to the returning officers ; and, upon their 
decision, that there is no choice, a new balloting takes place, at 
which an election is made, the latter will be set aside, if the 
decision of the returning officers upon the former was incorrect.^ 

210. The same general rules, by which com'ts of law are gov- 
erned, in regard to the evidence in proceedings before them, prevail 
also in the investigation of cases of controverted elections ; ^ but, 
inasmuch as a legislative assembly, touching things appertaining to 
its cognizance, is " as weU a council of state and court of equity 
and discretion, as a court of law and justice," ^ the legal rules of 
evidence are generally applied by election committees, more by 
analogy and according to their sphit, than with the technical strict- 
ness of the ordinary judicial tribunals. 

211. The rule stated in the preceding paragraph relates of 
course only to investigations by the testimony of witnesses or 
other evidence before the assembly itself or its committees ; but, 
where the testimony is contained in depositions, they ought to be 
taken according to the law of the State where they are taken ; and 
where the trial is before a committee, they may either be laid 
directly before the committee, or through the intervention of the 
assembly. The former is usually the case when depositions are 
taken in pursuance of authority by or uath the sanction of the 
committee. "WTiere they are taken in pursuance of a law for that 

1 Beeralston, Comra. Jour. II. 14. ^ Eogers on Election Committees, 89, 

s Washburn v. Elpley, Clarke & Hall, 679. * Glanville, 27, 118, 119. 



Chap. VL] controverted returns and elections. 



77 



purpose, the provisions thereof must regularly be pursued. The 
taking of depositions, in cases of controverted elections, in the 
house of representatives in congTess, is regulated by statute.^ 

212. Where a case is tried, in the usual manner, between a 
petitioner claiming the seat, and the sitting member, the parties 
carry on and conduct the trial, but neither of them recovers any 
costs against the other. The sitting member, whether he retains his 
seat, in virtue of his election, or is deprived of it, by the petitioner, 
is entitled to his pay as a member, at least, during the time he 
occupied a seat as such. The petitioner, if the seat is awarded to 
him, will be entitled to his pay as a member for the whole term ; 
while if he is unsuccessful, it appears to be the custom of the house 
of representatives in congress to allow the petitioner his pay as a 
member, or, at aU events, to relieve him from the legal expenses of 
the controversy. Where the investigation into the merits of an 
election, or the right of a member to his seat, is set on foot by the 
assembly itself and not at the soHcitation of any claimant of the 
seat, the assembly either defrays the expense out of its contingent 
fund, if it has one, or takes measures to obtain the passage of a law 
for that purpose. 

213. If. a petition against an election or return, (where the sub- 
ject is not otherwise regulated by law,) is presented at so late a 
period of the session, that an investigation cannot conveniently be 
had thereon ;^ or, if a petitioner does not, within a reasonable time, 
bring forward the evidence in support of his allegations ; ^ no further 
proceedings will, in general, be allowed to take place ; though, as 
" the commonwealth hath an interest in the election and service of 
every particular member," and " the parties may desert their com- 
plaint by some underhand combination," the election or return in 
question may nevertheless be examined.* 



1 Act of Feb. 19,1851. 

8 Sutton, Gushing, S. & J., 80 



» Cabell V. Randolph, Clarke & Hall, 134; 
Lyon V. Bates, Same, 372. 
* GlanviUe, 58, 118. 



LAW AND PRACTICE 



OF 



LEGISLATIVE ASSEMBLIES. 



PART SECOND. . 

OF THE CONSTITUTION OF A LEGISLATIVE ASSEMBLY. 



(79) 



LAW AND PKACTICE 



LEGISLATIVE ASSEMBLIES. 



PAET SECOND. 

OF THE CONSTITUTION OF A LEGISLATIVE ASSEMBLY. 



214. Having explained in the preceding part what relates 
to the election of the members, the next thing in order is to 
treat of the constitution, of a legislative assembly. The sense, in 
which this term is intended to be used, will be apparent from a 
statement of the several topics, embraced under it, which it is pro- 
posed now to consider, namely: — iirst, of the assembling and 
qualifying of the members, and of the organization; second, of the 
officers ; third, of the place and manner of sitting, and of the 
formalities of proceeding in the transaction of business ; fourth, of 
vacancies occurring and elections to fill them; and, fifth, of the 
sitting of an assembly, and of adjournment, prorogation, assem- 
bling by proclamation, and dissolution. 

(81) 



LEGISLATIVE ASSEMBLIES. [PaRT II. 



CHAPTER FIRST. 

or THE ASSEMBLING, QUALIFYING, AND ORGANIZING OF A 
LEGISLATIVE ASSEMBLY. 



Section i. PuELBnifAEY Proceedings in the House of 
Commons in England. 

215. The legislative assemblies of the United States being all 
constituted upon the model of the two houses of parliament, and 
especially of the house of commons, it will be useful to give some 
account of the assembling together and organization of that body 
for the transaction of business. 

216. The time and place for the holding of a parliament being 
fixed by the Idng in council, and inserted in the warrant directing 
the issuing of the writs of election, the members of the house of 
commons returned in pursuance thereof, as already described, 
attend on the day appointed for the meeting, in one of the rooms 
appropriated to tlie use of the clerk of the house, in the place 
where the parKament is to be held. They are there met by the 
clerk of the house, accompanied by the clerk of the crown in chan- 
cery; by whom the clerk of the house is then furnished xsath a 
book containing a duplicate record of the names of the members 
returned. The clerk of the house proceeds to call the names, and 
the members present answer as they are called, giving at the same 
time the names of the places for which they respectively serve.^ 

217. It was formerly necessary, at this point of the proceedings, 
that the members upon being called and ansv;^ering to their names, 
should take the oaths of abjuration, allegiance, and supremacy; 
without which they were prohibited under a severe penalty from 
taking seats in the house. They were also required to take the 
same oaths after the speaker had been chosen. But the taking of 
these oaths, before entering the house, has been dispensed with by 
a recent statute,^ and the members now proceed at once to their 

I Lex Parliamentaria, 263. The clerk of appointed by letters patent from the king, and 
the house is not elected by the house, but is holds his office for life. 

2 5 & 6 "W. 4, c. 36. 



Chap. L] assembling, qualifying, okganization. 83 

seats, upon being caKed by the clerk and answering to theii 
names. 

218. The statute, providing for the taking of the oaths before 
entering the house, was required, on the ground, that it was neces- 
sary in order to prevent persons who were not duly returned from 
participating in the choice of a speaker. The provision was 
repealed, on the gi-ound, that a person, who would enter the house 
and give his vote for speaker, without being returned, would not be 
deteiTed from doing so by the talcing of these oaths. 

219. When the members are thus assembled in the house, they 
receive a summons to attend immediately in the house of lords ; 
to which they proceed in a body, and are there informed by the 
lord chancellor, that, as soon as the members of the two houses 
shall be sworn, the sovereign wUl declare the causes of caDing the 
parliament ; and, in the mean time, as it is necessary that a speaker 
should be chosen, he directs them in the name of the king, to return 
to their house, and there proceed to the appointment of some 
proper person to be their speaker, whom' they are to present at a 
time named, in the house of lords, for the royal approbation. 

220. The commons then return to their house, and proceed at once 
to the election of a speaker, which is conducted in the follow^ing 
manner: — Some one of the members, addressing himself to the clerk 
at the table, who thereupon responds to the member by rising 
and pointing to him with his finger, reminds the house of the 
king's command to elect a speaker, and, in a short complimentary 
speech, proposes a candidate for that office. If this nomination is 
seconded, as it commonly is in a similar speech, and happens not 
to be opposed by any other candidate's being brought forward, the 
member thus selected is at once called by the house to the chair, 
and IS conducted there and placed in it by his proposer and 
seconder, without any other or more formal vote of the house. 

221. If the nomination is opposed by that of some other candi- 
date, both the candidates address themselves to the house, and a 
debate ensues, in which the merits and claims of the two are dis- 
cussed by their respective friends ; and a vote of the house is put 
on the question, that the member first proposed do take the chair 
as speaker. If this question should be decided in the negative, the 
opposing candidate is usually called to the chair, in the manner 
already mentioned, without a question being taken on his nomina- 
tion. 

222. The speaker elect, on being conducted to the chair, pauses 
for a moment on the upper step, to make his acknowledgments to 



84 LEGISLATIVE ASSEMBLIES. [PaET IL 

the house for the honor conferred on him, and then sits do-^'n in the 
chair. The mace, which is commonly described as a chib of silver, 
used as an emblem of the authority of the house, which has thus far 
in the proceedings remained under the table, is no\v placed upon it 
by the sergeant at arms, in token that the house is regularly con- 
stituted. The speaker elect is then congratulated by some mem- 
ber ; and the house adjourns to the day appointed for presentmg 
the speaker for the royal approbation. 

223. It was anciently the practice for the speaker elect, on being 
called to the chah, and before taking it, to disable himself, that is, to 
address the house -^dth a great show of modesty and diffidence, 
deprecating their choice of himself, and beseeching them to recall 
it, and to proceed to a new one. ]Mr. Sargeant Yelverton, after- 
wards chief justice of the common pleas, in the year 1597, disabled 
himself in terms, which were probably not uncommon on such 
occasions. The followhig extract wiU afford some idea of the per- 
son and condition of the learned sergeant, as well as of the charac- 
teristics of a disabling speech : — " Whence your unexpected choice 
of me to be your mouth or speaker, should proceed, I am utterly 
ignorant. K from my merits, strange it were, that so few deserts 
should purchase suddenly so great an honor. Nor from my ability 
doth this your choice proceed ; for "«^ell kno'^m it is to a great num- 
ber in this place now assembled, that my estate is nothing corre- 
spondent for the maintenance of this dignity. For my father dying 
left me a younger brother, and nothing to me but my bare annuity. 
Then gro^^dng to man's estate, and some small practice of the law, 
I took a ■'^-ife by whom I have had many children, the keeping of 
us all being a gi-eat impoverishing to my estate, and the daily hving 
of us aU nothing but my daily industry. Neither from my person 
or nature doth this choice arise; for he that suppheth this place 
ought to be a man big and comely, stately and weUspoken, his 
voice great, his carriage majestical, liis nature haughty, and his 
purse plentiful and heavy ; but contrarily, the stature of my body 
is small, myself not so v^'ellspoken, my voice low, my carriage law- 
yer-like and of the common fashion, my nature soft and bashftd, 
m,y purse thin, hght, and never yet plentiful. "^Tierefore I no^' see 
the only cause of this choice is a gracious and favorable censm-e of 
your good and undeserved opinions of me." ^ 

224. On the day appomted, the commons are again summoned 
to attend the king in the house of lords, and, going up accordingly, 

1 D'Ewes, 549. 



Chap. L] assembling, qualifying, organization. ^5 

the speaker is presented to the king by two of the members. The 
speaker then informs his majesty, that the choice of the commons 
has fallen on him, that he feels the difficulties of his high and 
arduous office, and that if it should be his majesty's pleasure to 
disapprove of the choice, the commons will at once select some 
other member, better qualified to fill the station. The practice 
anciently was, for the speaker " to disable himself again to the king, 
and, in most humble manner, to entreat the king to command them 
to choose a more sufficient man." The only instance of the royal 
approbation being refused was in the case of Sir Edward Seymour 
in 1678. Sir John Topham, who was chosen speaker in 1450, dis- 
abled and excused himself according to the fashion of the times, 
and his excuse being admitted by the king, another speaker was 
chosen by the commons in his place. Su" Edward Seymour, who 
knew that it had been determined to take advantage of his excuse, 
if he offered any, in the same manner, purposely avoided making 
one, so that the king was obliged to withhold his approbation in 
direct terms. 

225. The royal approbation being signified, the speaker then 
prays, on behalf of the commons, that they may be allowed their 
ancient privileges, namely : " that their persons, their estates, and 
servants, may be free from all arrests and molestations ; that they 
may enjoy liberty of speech in all their debates ; that they may 
have access to his majesty's royal person, whenever occasion shall 
require ; and that all their proceedings may receive from his majesty 
the most favorable construction." ^ These privileges being accorded 
to the commons, they return to their house, and the speaker makes 
a report of 'what has passed in the lords. 

226. The speaker on the return of the commons to their house 
then calls the attention of the members to the oaths which they are 
required by law to take, before proceeding to any other business 
than the choice of speaker. The oaths are those of allegiance, 
abjuration, and supremacy, which are first taken by the speaker 
himself, standing in his place, and then by the other members at 
the table in the middle of the house, while the house is sitting, with 
the speaker in the chan, and all other business being suspended for 

1 The privileges of the commons, since the fomns, not at all essential to their existence: 

passing of the act of 10 Geo. III. c. 50, are not and were perhaps never intended as any thing 

precisely what they are set forth to be in the more than a recognition of the commons as a 

spealier's petition, in wliich the ancient form duly organized body, and as from thence- 

of presenting them is preserved. The speak- forward entitled to the usual privileges of a 

er's demand, and the king's allowance, of the house of commons, 
privileges of the commons, are now mere 

8 



86 LEGISLATIVE ASSEMBLIES. [PaET IL 

the purpose, between nine o'clock in the morning and four in the 
afternoon.^ Three or four days are usually occupied in this duty ; 
and then, the commons are again summoned to attend in the lords, 
to hear the causes of calling the parliament declared, either by the 
king or by his commissioners. On returning to the house, the 
speaker reports the king's speech from " a copy he has obtained to 
prevent mistakes ; " an address is voted in answer to the speech, 
and from thenceforward the business of the house proceeds regu- 
larly.2 

227. At the same time, that the members take the oaths, each 
one dehvers in a declaration or particular of his property qualifica- 
tion, and subscribes the return book in the custody of the clerk of 
the house. K members refuse or neglect to take the oaths, or to 
deliver in their property qualification, they cannot sit, but are dis- 
charged from being members. K they sit and vote without being 
regularly qualified, they also subject themselves to severe penalties 
and disabilities.^ 



Section II. Preliminary Proceedings in the Legislative Assem- 
blies OF the United States. 

228. In this country, the preliminary steps, as weU as the subse- 
quent proceedings, of the legislative assemblies, are more or less 
analogous to the corresponding proceedings of the house of com- 
mons ; with the material exception, however, that the practice of 
presenting the presiding officer to the executive power for approval, 
which prevailed in the provincial assemblies, was AvhoUy abrogated 
by the revolution, and has not been introduced into any of our 
present constitutions of government. According to our practice, 
the members elected and returned make their appearance at the 
time and place appointed,* and proceed to organize themselves as a 

1 80 Car. II. Stat. 2, ch. 1. in the commons, time out of mind, for this 

'-2 A curious custom prevails in both houses, ceremony, is entitled " a bill for the more ef- 

imraediately after the king's speech is report- fectual preventing of clandestine outlawries." 
ed, for the purpose of asserting the right of ^ In the house of lords, the members appear 

parliament, if the two houses see fit, to con- in their places, at the time appointed, in 

sider of any other business they please, in obedience to the writ of summons sent to 

preference to the subjects referred to in the each of them individually; their clerk and 

speech as the causes of summoning the par- other ofBcers being appointed by the crown 

jiament. This custom consists in reading a for life ai'e in attendance ; and the lord chan- 

bill, which is prepared for the purpose by the cellor, for the time being, is the presiding 

clerk, and ordering it to be read a second time ; ofBcer. 

which, it is hardly necessary to say, is never * In some of the States, the governor ia 

done. The bill, which has been made us« of authorized by the constitution to change the 



Chap. L] assembling, qualifying, organization. 87 

legislative body, in the manner regulated by law, or sanctioned by 
usage. 

229. The right to assume the functions of a member, in the first 
instance, and to participate in the preliminary proceedings and 
organization, depends wholly and exclusively upon the return or 
certificate of election ; those persons who have been declared elected 
and are duly returned, being considered as members, until their 
election is investigated and set aside, and those who are not so 
returned being excluded from exercising the functions of members, 
even though duly elected, until their election is investigated and 
their right admitted.^ 

230. In some of the States, the names of the persons elected and 
returned are officially ascertained before the time of assembling, and 
a list or schedule made and the members themselves notified of 
their election, or summoned to attend; in others, the returns or 
certificates are either given to the members elected, or sent to the 
assembly which is thereby to be constituted. Where the former 
practice prevails, the persons summoned and no others, have it in 
their power to assume the functions of members ; where the latter 
mode is adopted, it is in the power of any person claiming to have 
been elected, to appear and assume the functions of a member, 
without being in fact either elected or returned. Li the former case, 
the returns are ultimately laid before the assembly by whom they 
are finally judged of. In the latter, they are counted and examined, 
in the first instance, by the members themselves, with a view to 
determine whether they may be allowed to proceed, and are after- 
wards more deliberately examined, usually, by a committee ap- 
pointed for the purpose, with a view to determine who are duly 
returned as members. Members, duly returned, continue to be and 
act as members, however insufficient their returns, elections, or rights 
of membership may, in fact, be, until their seats are declared vacant 
by the assembly. Members, duly returned, but who have acciden- 
tally left their returns or credentials behind them,^ either at their 
homes or their lodgings, have been allowed, upon a statement of 
the fact, to proceed to act, and be qualified, with the others, being 
enjoined in the mean time to produce their return as soon as may 

place of mpeting, when tlie health, lives, or pamphlet, entitlerl, " Proceedings and Debates 

liberty, of the members, would be endangered in the House of Representatives of the Com- 

by their assembling or attempting to assemble monwcalth of Massachusetts during the four 

hi the place fixed by law. days previous to the election of a Speaker, in 

1 Scobel, 86; Lex Pai-liamentavi;i, 37L See January, 1843, by Luther S. Gushing." 

also the Case of Thomas Nash, Jr., Gushing, - J. of S. 16th Gong. 1st Sess. 5; Cong 

S. & J., 439, and Chelsea, Same, 474, and a Globe, XXIII. App. 398. 



88 LEGISLATIVE ASSEMBLIES. [PaRT IL 

be. This practice, where an election is notorious, or the member is 
well known, is not likely to be attended \^ith any inconvenience, 
It depends, of course, upon the discretion of the assembly. 

231. Though there can be no doubt, on the ground of authority, 
that the return or certificate required by la^iv is the only e^ddence 
upon which one is entitled to assume the functions of a member ; 
yet, as the struggles of conflicting parties frequently lead to contro- 
versies respecting the right of membership, and instances have 
occurred of persons attempting to act as members, ^vithout being 
legally returned ; the question is of sufficient importance to deserve 
a careful investigation, in order that the decision of it may be 
placed upon the grounds of reason and principle, as well as 
authority. 

232. In every free representative government, upon the principles 
of which this question depends, the distinguishing characteristic is 
its periodical renew^al from the Original elements of all govern- 
ment, namely, the immediate ^dU of the people, and, in order to 
this renewal, it is indispensable, that the will of the people should 
be subject to no other control, than those forms of proceeding 
u'hich must necessarily be agreed upon beforehand, or, in other 
words, v\"hich are established by the laws ; that is, in this renewgJ 
of the sovereign legislative power, the course of proceeding must be 
from the people themselves, and not from any existing or pre- 
viously elected officers ; for, otherv\dse, instead of a recreation of 
the legislative power from its original elements, the forms of an 
election might merely result in the perpetuation of that which was 
aheady existing, and thus defeat the very intention and object of a 
representative government. The first requisite, therefore, to the 
existence of such a government, is freedom of election. 

233. But it is also essential to the very idea of this form of gov- 
ernment, that the electors should be divided into separate constitu- 
encies, either territorially or otherv,dse, for the purpose of effecting 
the elections ; and, in order to insure equality of representation 
among these constituencies, without which some portion of the 
people would be deprived of their just rights in the functions of 
self-government, it is indispensable to regulate beforehand, by law, 
both the manner in which the elections shall be conducted, and the 
e\'idence by which the result shall be authenticated ; other^dse, 
when the representatives should come to assemble themselves 
together, they ^vould have no means whatever of ascertaining for 
themselves whether the several constituencies were duly and prop- 
erly represented. The second essential requisite of a free represent- 
ative government, therefore, is equality of representation. 



Chap. L] assembling, qualifying, organization. 89 

234. If there were any contemporaneous power lodged any- 
where (except in the representative body itself) to control or decide 
upon the elections and returns of members, freedom of election 
would be wanting ; and, what was intended to be a renewal or 
recreation of the sovereign legislative power would be but a per- 
petuation of the old. If there were no regulations agreed upon 
beforehand, as to the manner of conducting the elections, the num- 
ber of persons to be returned, and the evidence by which the elec- 
tions should be authenticated, there could be no guarantee for 
equality of representation. 

235. It follows, therefore, that wherever these two principles, 
freedom of election, and equality of representation, are admitted to 
be fundamental, (as they are in all the constitutions of government 
in this country,) the manner of conducting elections, which has 
been established by the laws, and the evidence agreed upon before- 
hand to authenticate them, cannot be varied or departed from in 
any important particular, consistently with the very nature of a 
representative government, and, consequently, that the only 
evidence, by virtue of which anyone can rightfully assume or be 
permitted to assume the functions of a member of a legislative 
assembly, under such a form of government, is the return or certifi- 
cate which contains and embodies the result of the proceedings at 
the election, as decided upon by the returning officers.^ 

236. The rule which has just been considered applies not only 
to the case of one assuming or claiming a right to assume the char- 
acter of a member, without the regular and established evidence of 
a return or certificate ; but also to the case of two or more persons 
claiming adversely to one another, each of whom possesses a return 
or certificate, which would be sufficient, if the others were not in 
possession of evidence of right of apparently equal vafidity; so 
that where adverse claimants are returned, neither can sit until his 
right is determined, any more than any one claimant can sit with- 
out any return. In England, the case of double returns is not at 
all uncommon, and an order is always passed in the house of com- 
mons at the commencement of each session, prohibiting persons so 
retm-ned from sitting or voting, until the question of their election 
has been determined. In this country, for reasons already stated,^ 
double returns are more infrequent ; whenever they do happen, 
none of the persons so returned ought to presume to take any part 
in the proceedings, until their conflicting claims have been consid- 

1 See the pamphlet before cited. * See ante § 135. 

8* 



90 LEGISLATIVE ASSEMBLIES. [PaET IL 

ered and decided. In ^Massachusetts, several cases of this kind 
have occurred, in which the parties appeared and took seats in the 
house, but were suspended from acting, until their respective claims 
had been decided.^ 

237. AYhere the proceedings, preKminary to an organization, are 
such, that no person can intrude himself without possessing the 
regular e^-idence of election, no ditficulty is likely to arise in the 
constitution of the assembly. But, where this is not the case, it is 
obvious, that persons claiming the right of membership, ^dthout 
possessing the requisite e^■idence, may insist upon participating in 
the preliminary proceedings, and thus give rise to questions, which 
there is no authority but their own to decide. Li England, persons 
not returned as members, whose names of course are not on the 
book of returns, could hardly be able to obtain access to the house ; 
and, if they could do so, there is not the same inducement there as 
in this country, to make the attempt. The house of commons 
consists of six hundred and fifty^-eight members, a number much 
larger than any legislative assembly here ; and quite unlikely, there- 
fore, constituted as it now is, to be so nearly equally divided, as to 
make the poKtical character of the house depend upon the manner 
in which the controverted elections and rights of membership are 
settled. Besides, in that body, it is comparatively a matter of httle 
importance, from which party the speaker is elected ; and the 
speaker is the only one of the officers who is elected by the house ; 
the clerk and sergeant-at-arms holding then offices for life by 
appointment from the crown. The speaker of the house of com- 
mons, though holding an office of great dignity and importance, 
does not exercise nearly as much direct influence upon the pro- 
ceedings of the house, as is exercised by the same officer in our 
legislative assemblies. One single point of difference between the 
functions of the t^^o "v\"ill serve to explain the relative authority 
which they possess. With us, it is the almost invariable practice 
to confer upon the presiding officer the appointment of aU commit- 
tees ; which, whenever the subject to be referred is of a political 
character, are al^'ays constituted upon a party basis; all parties 
being duly represented, but the dominant party in the house of 
course predominating. In England, committees are usually named 
in the first instance, by the member, who proposes the resolution 
for their appointment, subject, of course, to the control of the 

iSee Adams, Cushing, S. & J., 13; also, Letcher v. Jlcore, Clarke & Hall, 715, 
Hopkint.n, Same, 261; Harioick, Same, 3S; and the cme of the Xew Jersey members. 
Troy, Same, 56; Chester, Same, 238. See 



Chap. I.] assembling, qualifying, organization. 91 

nouse. On great and important occasions, they are chosen oy 
ballot. And the most important committees, considered merely 
with reference to the state of parties, namely, election committees 
are selected, as we have already seen, in such a manner, as leaves 
very little, if any thing, in the power of the speaker. With us, 
therefore, the organization is certainly a matter of much more 
interest, if not of more importance, than it is in England. . v 

238. Hence it has occurred more than once, that struggles for 
political power have begun among the members of our legislative 
assemblies even before their organization ; and it has happened, on 
the one hand, that persons whose rights of membership were in dis- 
pute, and who had not the legal and regular evidence of election, 
have taken upon themselves the functions of members ; and on the 
other, that persons having the legal evidence of membership have 
been excluded from participating in the proceedings. The house 
of representatives in congress was once delayed in its organization 
by conflicting claims of this description. Another instance of the 
same difficulty occurred in the State of Massachusetts, in the year 
1843. And recently, one branch of the legislature of one of the 
most important States in the Union has found itself wholly unable 
to organize, for a similar reason. "^ 

239. Occurrences like these naturally lead to two inquiries, 
namely : first, what should be done in the particular case ; and, 
second, what should be done to prevent the recurrence of such a 
state of things for the future. It is proposed to state the principles 
of parliamentary law, which apply to and indicate the answer 
which should be given to both these inquiries. 

240. I. What should be done in the particular case. The prin- 
ciples of parliamentary law applicable to the question are perfectly 
simple and plain ; founded in the very nature of things ; established 
by the uniform practice and authority of parliament ; and con- 
firmed by reason and analogy. These principles are as follows : — 
first, that every person duly returned is a member, whether legally 
elected or not, until his election is set aside ; second, that no per- 
son, who is not duly returned, is a member, even though legally 
elected, until his election is established; third, that conflicting 
claimants, both in form legally returned, are neither of them 
entitled to be considered as members, until the question between 
them has been settled ; and, fourth, that those members, who are 
duly returned, and they alone, (the members whose rights are to 
be determined being excluded,) constitute a judicial tribunal, for 
the decision of all questions of this nature. 



92 LEGISLATIVE ASSEMBLIES. [PaKT LL 

241. Where the number of members admitted on all sides to be 
legally retm-ned is sufficient for the purpose, these principles may 
be and invariably are applied and enforced, w^ithout difficulty. 
Where this is not the case, — where there is no acknowledged 
majority to decide the question, and to compel obedience to its 
decisions, — each individual member must decide it for himself. 
In such a state of things, therefore, let each member apply the prin- 
ciples above stated to his own case and conduct himself accord- 
ingly. The result will be, either that one side will yield, or that 
both \^dll remain in the condition which they have respectively 
chosen. In the first case, the party yielding waives its supposed 
rights for the time being, and submits its claims to the only 
contemporary tribunal competent to decide upon them, and trusts 
to its honor, patriotism, and sense of justice. K this reliance 
proves in vain, and right and justice are sacrificed to party ; there 
is no alternative but to appeal to that tribunal, which revises the 
decision of aU others ; the tribunal of the future eternally and every- 
where sitting in judgment upon the past; whose judges are the 
people, and whose judgments are recorded in pubfic opinion. K 
neither party will yield, and no organization can legally and con- 
stitutionally be made, there seems to be no other alternative, than 
a suspension of the functions of the legislative department, so long 
as this state of things continues, or for the period of its official 
existence. The effect of this must depend, of course, upon the 
constitution of each particular State. In all the States, it is 
beheved, the legislative body expires at all events, with the period 
for which it was chosen ; while the officers of the executive and 
judiciary remain in office until their successors are chosen or 
appointed and duly quafified. The state of things alluded to 
would therefore result merely in a suspension of the legislative 
function for a period somewhat longer than usual; leaving the 
other departments of government to go on with their official duties, 
in the same manner, in which they ordinarily -were accustomed 
to do, when the legislative body was not in session. This, though 
extremely undesirable and Hkely to be attended with many tem- 
porary inconveniences and embarrassments, is very far from being 
a dissolution or suspension of government. It would be analo- 
gous rather to what has repeatedly happened in England, when a 
premature dissolution of parfiament has become necessary, in 
consequence of irreconcilable disputes and controversies between 
the two houses. 

242. II. What should be done to prevent the recwrence of such a 



Chap. I.j assembling, qualifying, organization. 93 

state of things for the future. — The only mode in which an organi- 
zation can be secured, at all events, is to designate by law the per- 
sons who shall temporarily constitute the officers of the assembly. 
In France, under the old constitution, it was provided, that, on the 
assembling of the deputies, the oldest member should take the chair 
as president, the five youngest members should act as secretaries ; 
and that the assembly, thus temporarily constituted, should pro- 
ceed to a verification of the powers of the members, or, in other 
words, should ascertain who were duly returned. A similar pro- 
vision has been introduced into the laws of the State of Massachu- 
setts with respect to the organization of the house of representa- 
tives. The returns are made into the office of the secretary of the 
commonwealth before the day of assembling ; that officer furnishes 
the sergeant-at-arms with a list of the members so returned, A\^ho 
alone are to be admitted into the chamber of the house ; the oldest 
of the members (not the oldest person) thus admitted takes the 
chair as presiding officer ; the clerk of the preceding house acts as 
clerk, until his successor is chosen and quafified ; the sergeant-at- 
arms in like manner continues in office until a new one is chosen ; 
and the house is thus completely organized for the temporary pur- 
pose of ascertaining who are in fact members, and indeed for all 
necessary purposes, until new officers are regularly chosen. 

243. The members elect of a legislative assembly being met 
together, at the time and place appointed by the constitution or 
law for their assembling, they proceed, at once, to take the neces- 
sary steps to enable them to discharge the functions of members, 
that is, to take the oath required, and to organize themselves, by 
the choice of the proper officers. For this purpose, they are either 
authorized to proceed without the presence of any particular num- 
ber, or that of a specified number may be required. 

244. In the States of Maine, New Hampshire, and Massachu- 
setts, where the senate is to consist of a certain specified number 
of members, elected by the districts into which those States are 
respectively divided for the purpose, if there is a failure in any 
instance to elect by the people, the vacancies in the senate are to 
be filled, on the day appointed for the assembling of the legislature, 
by the house of representatives and such members of the senate as 
may be elected and summoned to attend accordingly, from among 
the candidates who received the highest number of votes for sena- 
tors and were not elected. For the purpose of filling these vacan- 
cies, and taking the necessary prefiminary steps thereto, no particular 
number either of the senate or house is necessary, or for adjourn- 



94 LEGISLATIVE ASSEMBLIES. [PaRT II. 

ment from day to day, for the same purpose, although a certain 
specified number is required to be present therein, respectively, for 
the doing of any ordinary business. 

245. In the States above mentioned, therefore, the vacancies in 
the senate may be filled by those members of the t\\^o branches who 
are duly retm'ned, and attend on the day of assembling, though they 
do not amount to the number requisite to the transaction of busi- 
ness; but in other States, and in the federal government, v^^hose 
legislative bodies are not authorized to proceed in this manner, their 
right to proceed to organize on their first assembling is supposed to 
depend, like their authority to proceed afterwards with the transac- 
tion of business, upon the presence or absence of a certain specified 
number of members, denominated a Quorum, which will be treated 
of immediately in connection with this subject. 



Section III. Quorum. 

246. It being a general rule, that where authority is conferred 
upon several persons, to be exercised with others, aU the persons 
authorized must be present, in order to exercise it, and that author- 
ity delegated to the discretion of an individual, cannot be delegated 
by him to another ; it would be a consequence of these principles, 
if they were strictly applied to the proceedings of legislative assem- 
blies, the members of which have but a merely delegated authority 
themselves, and constitute a representative body, that the members 
must aU necessarily be present, and concur, in order to the doing of 
any valid official act. But this Avould be extremely inconvenient, in 
general, and, in the greater number of our legislative assemblies, 
which are bodies of considerable size, would render their proceeding 
wholly impracticable. Hence it has been found indispensable, in 
the constitution of legislative assemblies, to make them an ex- 
ception, in both these respects, to the general principles above 
stated. 

247. In aU councils and other collective bodies of the same kind, 
it is necessary, therefore, that a certain specified number, called a 
quorum^ of the members, should meet and be present, in order to 
the transaction of business. This number may be precisely fixed 
in the first instance, or some proportional part established, leaving 
the particular number to be afterwards ascertained, with reference 

^ For the origin of this term, see Blackstone's 'Commentaries, I. 351. 



Chap. I.] assembling, qualifying, organization. 



95 



to each assembly, and this may be done either by usage, or by 
positive regulation ; and, if not so determined, it is supposed, that a 
majority of the members composing the body constitute a quorum. 
If the required number is not present, at the time appointed for 
the meeting of a legislative assembly, the members can ordinarily 
do nothing more than adjourn from day to day, and wait for the 
requisite number, unless they are specially authorized to take meas- 
ures to compel the attendance of absent members. In this country, 
the number necessary to constitute a quorum is, in all the States, 
respectively, and in the congress of the United States, regulated 
by constitutional provisions. 

248. In the British parliament, according to the ancient and 
invariable usage of the two houses, as evidenced by their rules, 
three is the number necessary to constitute a quorum of the lords,^ 
and forty a quorum of the commons.^ These numbers, respectively, 
although estabhshed by and dependent upon usage merely, and 
within the power of each house to abrogate or change at any tirae,-^ 
have nevertheless the force of standing orders,"^ that is, they are 
equally binding upon every succeeding parliament until abrogated, 



1 May, 191. 

2 This number, which appears to have been 
first recognized as the quorum of the com- 
mons, on the 5th of January, 1640, (Coram. 
Jour. II. 63,) depends only on usage, and may 
be altered at pleasure. From an entry on the 
20th April, 1607, (Comm. Jour. I. 364,) it 
seems, that sixty was not then a sufficient 
number. An attempt was made in the com- 
mons, March 18, 1801, (Comm. Jour. LVL 
188,) to make the quorum sixty, but it failed. 

5 It is somewhat sui'prising, that in refer- 
ence to so simple a matter as the number 
necessary to constitute a quorum of either 
house of parliament, there should be any 
diversity of statement among well-informed 
writers. But such is nevertheless the fact. 

Judge Story, (Com. on Const. II. 295,) saj's 
'.hat the number of forty-five constitutes a 
quorum to do business in the house of com- 
mons. And he adds, in a note, " I have not 
jeen able to find, in any books within my 
/•each, whether any particular quorum is re- 
quii'ed in the house of lords." 

Chancellor Kent, (Com. I. 235, note b,) 
says : — "In the English house of commons, 
forty members used to form a quorum for 
business, but in 1833, the requisite number 
was reduced to twenty." 

The authors of a French work — Confection 
des Lois, (1839,) p. 163, — having spoken of 
*brty members as a quorum of the house of 



commons, add, in a note, that the number is 
now fixed at twenty. 

The notion, that the quorum of the com- 
mons had been reduced from forty to twenty, 
arose from the fact, that, in the years 1833 
and 1834, the house met for the transaction 
of private business at three o'clock, and at 
five, proceeded to the public business as be- 
fore; the quorum for the two hours devoted 
to private business was fixed at twenty mem- 
bers ; leaving the quorum for the general busi- 
ness of the house at forty, as it had been 
established by usage time out of mind. This 
arrangement for private business was not re- 
newed after 1834. 

The origin of the number ihree as a quorum 
of the house of lords undoubtedly arose from 
a principle of the Roman law, that three per- 
sons suffice to make a college — collegium, 
equivalent to our word corporation, in most 
of its legal features. 

■* By the system of standing orders, which 
is in use in England, it is in the power of the 
house of commons, at any time, by simply 
declaring one of its orders a standing order, to 
make it binding on or in force in a succeeding 
house of commons, as much as if it was an 
order of that house itself. This system does 
not prevail in this country. It is not in the 
power of a legislative assembly here to make 
any rules to bind its successors. That can 
only be done by constitutional provision or 



96 LEGISLATIVE ASSEMBLIES. [PaRT II. 

and do not require to be specially adopted in order to be in 
force. 

249. In this country, the number necessary to form a quorum is 
different in each legislative assembly, according to its size, the 
quorum being for the most part fixed at some aliquot part, as foi 
example, two thirds, or a majority of each ; and, of course, being 
established only by constitutional proAdsion, the number is in force 
at the commencement of each session, and is unalterable by the 
assemblies themselves. 

250. In the constitutions of the United States and of the follow- 
ing named States, it is provided, in the same words, that " a ma- 
jority of each house shall constitute a quorum to do business," 
namely : — Maine, Rhode Island, Connecticut, New York, New 
Jersey, Pennsylvania, Delaware, Virginia, South Carolina, Florida, 
Alabama, ]Mississippi, Mchigan, JNIissouri, Iowa, Wisconsm, and 
California. Li the constitutions of New Hampshire, (as to the house 
of representatives,) Marjdand, and Vermont, the same propoi-tional 
number is established in equivalent terms. In the constitution of 
Ohio it is declared, that " a majority of aU the members elected to 
each house shall be a quorum to do business." 

251. In the constitution of Illinois, it is provided, that " t^^o 
thirds of each house shall constitute a quorum," and in those of 
Temiessee, Indiana, Arkansas, and Texas, that " two thirds of each 
house shall constitute a quorum to do business." ^ 

252. In the constitution of New Hampshire, it is provided that, 
" not less than seven members of the senate shall make a quorum 
for doing business," and in that of Massachusetts, " that not less 
than sixteen members of the senate and sixts' members of the house 
of representatives shall constitute a quorum for doing business." 
The constitutions of Louisiana and Kentucky declare, that "not 
less than a majority of the members of each house shall constitute 
a quorum to do business;" that of Georgia that " a majority of 
each house shall be authorized to proceed to business ; " while that 
of North Carolina provides, that "neither house of the general 
assembly, shall proceed upon public business unless a majority of 
aU the members of such house, are actually present." The assem- 

bv lav,-. Each assembly, indeed, nsnaUy ^ In the several assemblies, therefore, men- 
adopts the rules and orders of its predecessors, tioned in this and the preceding paragraph, 
in express terms, and until this is done, they the number necessary to a quorum is so fixed 
are not in force at all. There is an interval, by the constitutions of the States, to which 
therefore, of more or less duration, at the they respectively belong, that it cannot be 
commencement of each assembly in this coxm- varied therefrom by those assembUes them- 
try, -srhen the only rules in force in it are selves, 
ibose of the common parliamentai-y law. 



Chap. L] assembling, qualifying, organization. 97 

blies, therefore, in the States mentioned above, may establish the 
quorum of each at any number they please, provided it is not less 
than the constitutional number. Thus, in Massachusetts, where 
the senate is to consist of forty members, not less than sixteen of 
whom are to constitute a quorum, that body may itself determine 
upon and fix its own quorum at any number between sixteen and 
forty. 

253. In some of the ways above mentioned, the quorum of each 
legislative assembly becomes established at a fixed number ; the 
presence or absence of which can always be ascertained by count- 
ing. This is usually done, after the assembly is constituted, by its 
presiding officer, who announces or reports the result. In the 
senate of the United States this duty is performed by the sergeant- 
at-arms, upon whose report to the presiding officer, the latter an- 
nounces the result. For the purpose of ascertaining whether a 
quorum is present, every person, who is entitled to vote, that is, 
every person, whose return as a member has been admitted, and 
who has been regularly sworn as such, and no other person, is to 
be counted. This rule excludes, first, all mere claimants to seats, 
whose claims, however well founded they may be, are not yet ad- 
mitted ; but it does not affect the right of persons duly returned, 
however ill founded their claim may be, and notwithstanding their 
elections may be controverted. In the second place, it excludes the 
presiding officer, when he is not a member of the body over which 
he presides, but presides in virtue of his election or appointment to 
some other office. Thus, the lord chancellor, who presides over the 
house of peers, in virtue of his office of chancellor, is not counted 
to make a quorum of that body, unless he is also a peer and as 
such a member of the house of lords. So, also, the vice-president 
of the United States, who, by virtue of his office, is the presiding 
officer of the senate, is not counted as a member, to make a quorum 
of that body, not^vithstanding he is expressly entitled, by the con- 
stitution, to give the casting vote 1 herein,- when the senate is equally 
divided. In the third place, the rule 'above mentioned excludes 
the representatives of territories in the lower house of congress, 
denominated delegates, from being counted therein as members, to 
make a quorum, although by law they exercise all the functions of 
members except that of voting. 

254. In the constitutions of the United States, and of all the 
States, except Massachusetts, New Hampshire, New York, New 
Jersey, and North Carolina, it is expressly provided, that a less 
number than a quorum may adjourn from day to day This pro- 

9 



98 LEGISLATIVE ASSEMBLIES. [PaRT II. 

vision, being general, is applicable as well before as after the 
organization. But as a legislative assembly, when duly convened, 
cannot be adjourned without day, or dissolved, but by lapse of 
time, or in the manner provided by law ; and as an adjournment 
from day to day can have no other effect than to enable those who 
attend personally to ascertain, in the most convenient manner, 
when the requisite number is present ; it can scarcely be thought 
necessary to the existence of such a po^v^er, that it should be ex- 
pressly conferred ; and therefore it may be considered to exist, as 
well in those States whose constitutions are silent on the subject, 
as in those where it is expressly conferred. 

255. If, on the day appointed for the meeting, the requisite 
number of members is not present, those who attend can only 
adjourn until the next day, and so on from day to day, until the 
requisite number appears, or a prorogation or dissolution takes 
place ; unless a smaller number than a quorum should be expressly 
authorized to compel the attendance of absent members ; in which 
case, proceedings may take place for that purpose. In reference to 
this subject, various provisions are in force. Those only which are 
found in the several constitutions wiU be briefly noticed. 

256. I. The constitution of the United States provides, that a 
smaller number than a quorum " may be authorized to compel the 
attendance of absent meinbers, in such manner, and under such 
penalties, as each house may provide." The same provision is 
found in the constitutions of New Jersey and Alabama, and with a 
shght verbal alteration in those of Delaware and Virginia ; in the con- 
stitutions of Mame and Arkansas, and with a shght verbal altera- 
tion, in those of Rhode Island, Maryland, and JMissouri, the language 
is, that a less number than a quorum " may compel the attendance 
of absent members, in such manner and under such penalties, as 
each house shall provide." The constitutions of Georgia, Florida, 
Michigan, Texas, INIissouri, Iowa, Wisconsin, and Cahfornia, con- 
tain clauses, similar in substance to those last mentioned. Con- 
stitutional provisions, of this kind, do not confer any present 
authority of themselves to compel the attendance of absent mem- 
bers ; nor do they authorize the conferring of any such power by 
law ; they merely authorize each house, when duly constituted, to 
compel the attendance of its members.^ Consequently they can 
have no operation untU after the organization. 

1 Congressional Globe, XVI. 977. In the teen members, including the speaker, if there 
rules and orders of the house of representa- is one, shall be authorized to compel the 
lives in congress, it is provided, that any fif- attendance of absent members. 



Chap. L] assembling, qualifying, organization. 99 

257. II. The constitution of Pennsylvania provides, that a 
smaller number than a quorum "may be authorized by law to com- 
pel the attendance of absent members in such manner and under 
such penalties as may be provided." That of Tennessee contains 
a similar clause. In the constitution of Louisiana, which contains 
a like provision, the word " shall " is inserted, instead of " may." 
The constitutions of Kentucky and Ohio have the same provision 
in substance as that of Pennsylvania. Clauses of this description 
authorize the legislatures of the States in which they prevail, to 
provide beforehand, by law, that each legislative assembly, though 
containing less than a quorum, may compel the attendance of its 
members ; and this authority may as weU be exercised, so as to 
relate to the first assembling, as after the constitution of the as- 
sembly. When this is the case, if the requisite number do not 
appear, those who do, may, of course, resort to the measures, pro- 
vided by law, to compel the attendance of absent members. 

258. III. In the constitution of Rhode Island, it is provided, that 
" a less number than a quorum of each house may compel the attend- 
ance of absent members, in such manner, and under such penalties, 
as may be prescribed by such house or by law ; " in those of 
Indiana and Illinois, the terms are, that " a smaller number may 
meet, adjourn from day to day, and compel the attendance of 
absent members." In the first-mentioned State, certainly, and it is 
presumed, also, in the others, provision may be made either by law, 
or by each house acting for itself, to enforce the attendance of 
absent members. 

259. IV. The constitutions of Massachusetts, New Hampshire, 
Vermont, New York, and North Carohna, are silent with reference 
to this subject. But it can scarcely be doubted, that in those States, 
and in those w^here the power is conferred upon the legislative 
bodies themselves, as weU as in those whose constitutions author- 
ize the regulation of this matter by law, the subject may be made 
one of ordinary legislation. 

260. When the number necessary to constitute a quorum is 
fixed absolutely, as in Massachusetts, it is only necessary to count 
the members present, in order to ascertain whether the requisite 
number is in attendance ; so where the quorum is some aliquot 
part of the whole number, as two thirds, or a majority, provided 
the whole number is fixed by law ; but, where the number neces- 
sary to form a quorum is an aliquot part of the whole, and the 
number of which the whole assembly may consist is uncertain, 
depending upon the number of constituencies which elect mem- 



100 LEGISLATIVE ASSEMBLIES. [PaET IL 

bers, or the nuinber of elections that take place, it is necessary, in 
the first instance, to ascertain how many the body consists of, 
before proceeding to determine whether a quorum is present ; and, 
in order to do this, it is clear that those who are duly retunied and 
those only must be reckoned as members. In all cases, therefore, 
it seems to be manifest, that a less number than a quorum must 
have power, at least, provisionally, from the very necessity of the 
case, to examine and decide upon the returns ; for, otherwise, it 
might be impossible to ascertain how many members were present. 

261. When the number, of which an assembly may consist, at 
any given time, is fixed by constitution, and an ahquot proportion 
of such assembly is required in order to constitute a quorum, the 
number of which such assembly may consist and not the number 
of A:vhich it does in fact consist, at the time in question, is the 
number of the assembly, and the number necessary to constitute a 
quorum is to be reckoned accordingly.^ Thus, in the senate of the 
United States, to which by the constitution each State in the 
Union may elect tv^^o members, and which may consequently con- 
sist of two members firom each State, the quorum is a majority of 
that number, vi^hether the States have all exercised their constitu- 
tional right or not.^ So, in the second branch of congress, in which, 
by the constitution, the whole munber of representatives of which 
the house may consist is fixed by the last apportionment, increased 
by the number of members to which newly admitted States may 
be entitled, the quorum is a majority of the whole number, includ- 
ing the number to which such new States may be entitled, whether 
they have elected members or not, and making no deductions on 
account of vacant districts.^ 

262. Where a number less than a quorum is under the necessity 
of acting, as, to adjourn from day to day, to examine and decide 
upon returns, or to compel the attendance of absent members, the 
same person usually assumes, or is required by law^, to preside, by 
whom the prehminary proceedings are afterwards conducted, until 
the organization takes place ; but if no person is authorized by law 
or by custom to conduct or record their proceedings, the most con- 
venient and proper mode to be adopted will be for them to appoint 
suitable temporary officers to prepare and manage their business, 
but for every order and record to be authenticated by the signature 
of each and every member present. 

1 J. of H. VI. 274, 395; J. of H. VII. 214. = J. of H. 30th Cong. 1st Se?s. 877; Cong. 

2 J. of S. 32d Cong. 2d Sess. 351 ; Cong. Globe, XVEI. 821. 
Globe, X. 1. 



Chap. L] assembling, qualifying, organization. 101 

263. The right of the members of every legislative assembly to 
have the presence and attendance of other members, in order to a 
due organization of the assembly, has already been partly treated 
of in the preceding section, in connection with the number neces- 
sary to constitute a quorum. Very nearly akin to this right, is that 
of the assembly itself, after it is constituted, to have the attendance 
of aU its members, for the transaction of business. Where the 
former right is conferred and measures are provided by law for its 
enforcement, those measm-es will, of course, depend upon the partic- 
ular law by which they are created, and wiU be made adequate to 
the end in view, according to the circumstances and condition of 
each assembly, but wiU probably bear more or less analogy to the 
means resorted to by the assembly itself, after its constitution, to 
enforce the attendance of its members. 



Section IV. — Compelling Attendance of absent Members. 

264. Every legislative assembly, when djily constituted, has power 
to compel the attendance of its members ; but, until so constituted, 
it has no such power, as it has itself no legal existence ; and the 
right of the members who are present for the purpose of organiza- 
tion to compel the attendance of other members depends whoUy, 
as has been seen, upon the constitution or la^v to which each 
assembly is subject. The right of a legislative assembly, after it is^ 
regularly constituted, to have the attendance of aU its members / 
except those who are absent on leave, or in the service of the 
assembly, and to enforce it, if necessary, is one of its most 
undoubted and important pri\^leges. It is usually enforced by 
means of what is denominated a "call " ^ of the assembly, which is 
effected in the following manner in the house of commons. 

265. When a call of the house is determined upon, the first step 
to be taken is to pass an order that the house be called over on a 
future day, and, for Ihis purpose, it is usual to appoint a day which 
wiU enable the members to attend from aU parts of the country. 
This order is always accompanied by a resolution " that such 
members as shall not then attend be sent for in custody of the 
sergeant-at-arms." On the day appointed for the call, the order of 
the day for that purpose is read in the usual manner, and pro- 
ceeded with, postponed, or discharged, at the pleasure of the house. 
If proceeded with, the names of the members are called over in the 

1 May, 188. 

9* 



102 



LEGISLATIVE ASSEMBLIES. 



[Part II. 



order in wliich they stand on the roll of the house, and those who 
are present answer to their names. The names of those who do 
not answer are taken doxsTi by the clerk, and are afterwards called 
over again. If they appear in their place at this time, or in the 
course of the same sitting, it is usual to excuse them for then pre- 
vious default ; ^ but if they do not appear, and no sufficient excuse 
is offered for them, by their friends, they are ordered to attend on a 
future day.- It is also customary to excuse them if they attend 
on that day, or if a reasonable excuse is then offered, as illness,'^ the 
iQness and death of near relations,^ public service,^ or being abroad.^ 
K a member should not attend at this time, and no excuse should 
be offered, he will be liable to be taken into the custody of the 
sergeant-at-arms, and brought to the house in that manner. Li 
this case, he will be hable to pay the fees incident to such 
commitment and detention. But iastead of committing the 
defaulters, the house sometimes appoints another day for their 
attendance," or discharges the order for their commitment alto- 
gether.^ In earlier times, it was customary for the house to 
inflict fines upon defaulters, as well as other punishment.^ 

266. This is substantially the method pursued in our legisla- 
tive assemblies, with such alterations as each may think proper, 
the elements of a call being the calling of the members at 
a given time ; the sending for defaulters in custody ; and the 
payment of fines and other expenses by them, in order to effect 
their discharge. In the senate of the United States, a compul- 
sory attendance of the members has not been found necessary; 
and nothing analogous to a call of the house has ever been 

/resorted to. In the house of representatives, on the contrary, a 

/ call of the house is of almost daily occurrence ; it is incidental 

■ to aU other business, and takes place, without the passmg of 

any previous order for the purpose, or the giving of any notice 

thereof beforehand. The manner in which it is there practised, 

is made the subject of a special rule.^^ 

267. The obligation of a member to attend the service of the 
house, at all times, when the house sits, is, of course, suspended 
for a time, while a member has leave of absence; wliich may 



1 Comm. Jour. LXXX. 147. 

2 Comm. Jour. LXXXIV. 106. 

3 Comm. Jour. LXXX. 130. 

4 Comm. Jour. LXXX. 180. 

5 Comm. Jour. LXXX. 130. 
« Comm Jour. XCL 278. 



f Comm. Jour. XCL 278. 
8 Comm. Jour. XC. 132. 
3 Comm. Jour. I. 300, 862; Same, U. 204, 
Same, IX. 75. 
10 Rules 62, 63, 64. 



Chap. L] assembling, qualifying, organization. 103 

be obtained, on the application of the member himself, or of 
any one in his behalf, and, sometimes, on the report of a com- 
mittee appointed for the purpose. The same effect results from 
absence or employment in the service of the house. 

268. When the attendance of absent members is compellable by 
virtue of a rule of the assembly, it is usual to provide that the pro- 
ceedings, for this purpose, may take place, when a number of the 
members less than the number necessary for an ordinary quorum 
is present; and that number, though they can do nothing else, 
may, of course, do whatever is necessary to compel the attendance 
of absent members. Thus, in the house of representatives of con- 
gress, fifteen members, including the speaker, if there is one, consti- 
tute a quorum for this purpose. 

269. If the motion, for a call of the house, passes in the negative, 
a second motion, for the same purpose, is not in order, until after 
the intervention of some parliamentary proceeding.^ If it passes in 
the aifirmative, the order may be rescinded or discharged, or the 
subject may be reconsidered. 

270. A motion, for a call of the house, cannot be suppressed by 
a motion to lie on the table, but must be decided specifically.^ AU 
proceedings under a call are, from its very nature, suppressed,^ and 
all members under arrest, as defaulters, are discharged,^ by an 
adjournment of the assembly, whatever may be its effect upon 
other proceedings. In the mean time, the latter are excluded from 
voting, or otherwise participating in the functions of members.^ 



Section V. — Organization. 

271. The modes of organization, though substantially the same 
in all, are yet so different in their details, in the several States, that 
it will be impossible to do any thing more than allude, in general 
terms, to some of their distinctive features. In most of the States, 
there are certain differences in the constitution of the two branches, 
composing the legislature, which lead to corresponding differences 
in the mode of organization ; in some, the presiding officer of the 
senate, or first branch, is not a member of the body, but is elected 
to some other office, in virtue of which he presides, as that ol lieu« 

I J. of H. 27th Cong. 3(1 Seas. 532 ; J. of H. 3 Cong. Globe, XVIII. 60. 

asth Cong. 2d Sess. 1151 ; Cong. Globe, XX. * Cong. Globe, XV. 516. 

177, 17S. ' 6 Cong. Globe, XVIII. 928. 

s Cong. Globe. XIIL 335. 



104 LEGISLATI^.-E ASSEMBLIES. [pART 11. 

tenant-governor, or vice-president, and is ex officio president of the 
senate ; in others, a certain part only, as one third, or one fourth, of 
the senate, is chosen at the same tune with every new election of 
the other branch ; while, in other States, both these peculiarities 
concur; and, in all these cases, the mode of organization varies 
accordingly. 

272. The senate of the United States, though it constitutes a 
branch of each succeeding congress, and its sessions are held peri- 
odically, and correspond with those of the house of representatives, 
is a continuous and permanent body, was organized under the con- 
stitution, when that instrument fii'st went into operation in 1789, 
and has continued its organization ever since. Each State is enti- 
tled to be represented at all times by two senators in the senate of 
the United States, and elects them by the legislature of each, for 
the term of six years, whenever vacancies occur, by lapse of time. 
Occasional and unforeseen vacancies, occurring by reason of death, 
resignation, acceptance of a disqualifjdng office, or otherwise, are 
filled, for the residue of the unexpired term, either by the legislature, 
if then in session, or by appointment of the executive. Members, 
when elected or appointed, if the senate is then sitting, or as soon 
afterT^'ards as it sits, present their credentials, and immediately take 
the oath of office, and their seats. The senate, on its first organiza- 
tion under the constitution, "^^as diA-ided, by lot, into three classes, 
one of which expires wath each congress ; and the same arrangement 
being repeated on the accession of new States,^ as to the members 
therefrom, one thh'd of the members of the senate go out of office 
ever}^ two years. Hence, at the commencement of each congress, 
two thirds of the senate, at least, which is more than a quorum, 
are then in office, duly qualified, and ready to proceed to business. 
The presiding officer of the senate being the vice-president of the 
United States, by vii-tue of his office, and in his absence, one of the 
senators, chosen temporarily ; and the former retuing from the 
senate, towards the end of each congress, in order that his place 
may be suppfied by the choice of a temporary president ; the con- 
sequence is, that at the commencement of each congress, there is a 
presiding officer of the senate, aheady in office, ready to proceed at 
once with his duties as such, and without any further authority 
from the senate. The secretary, and other officers of this branch, 
remain in office until then successors *are chosen. There is no ne- 



1 The members, -n-hose terms of service are bv an aareeraeiit among themselves. Cong 
thus in question, cannot regulate the same, Globe, XV. 1. 



Chap. L] assembling, qualifying, organization. 105 

cessity, therefore, at the commencement of each congress for an 
organization of the senate of the United States in the ordinary- 
sense of that term. In these points, the senate of the United 
States bears a close analogy to the house of lords. 

273. The senate of the United States being a permanent and 
continuing body, its officers, (except its presiding officer,) when once 
chosen, remained in office until vacancies occurred by death, resig- 
nation, or removal from office, which were equivalent, of course, to 
appointment for life. This system lasted from the first organization 
of the senate, under the constitution, until January, 1824, (18th 
congress,) when, upon the report of a committee to whom the sub- 
ject was referred, it was resolved that the secretary, sergeant-at- 
Liims, door-keeper, and assistant door-keeper, of the senate, should 
be chosen by t'le senate, on the second Monday of the first session 
of the nineteenth and every succeeding congress.^ But this rule, it 
is believed, is no longer in force. 

274. If thie senate of the United States has some points of resem- 
blance to the house of lords, in its constitution, the proceedings of 
the house of representatives, in its organization at the commence- 
ment of a congress, bears no less resemblance to that of the house 
of commons at the commencement of a parliament. The clerk 
and sergeant-at-arms, attendant upon the house of commons, being 
patent officers, appointed by the crown for life, are rightfully present 
at the commencement of a new parliament, in the discharge of their 
respective duties, and the former initiates the necessary steps and 
proceeds with the election of spealicr, as the proper recording officer 
of the commons. The election and approval of the speaker having 
taken place, in the manner already described, the speaker and other 
members are then sworn, and the business of the house proceeds. 
The members elect of the house of representatives in congress as- 
semble at the time and place appointed, in pursuance of the consti- 
tution, for their meeting, and are there met by the clerk of the last 
house of representatives, who has prepared, beforehand, from news- 
papers and other similar sources, a list of the members returned. 
He calls over the house by this list, and the members then proceed 
to the election of a speaker. The speaker being chosen, the oath 
is first administered to him by the oldest member of the house 
present, and then by the speaker to the rest of the members. The 
clerk is afterwards chosen, either immediately, or at the expiration 
of some days. In the mean time, the clerk of the last house is suf- 

1 Journal of HiSMte, 18th Cong. 1st Sess. 130, 133 



106 ■ LEGISLATIVE ASSEMBLIES. [PaRT IL 

fered to act as clerk. The duty of the latter to act as clerk of the 
new house and initiate the steps necessary to its organization is 
founded merely in custom and usage copied doubtless from the 
practice which prevails in the house of commons. But in the latter 
the clerk is akeady appointed ; vhereas, in the house of representa- 
tives in congress, the clerk derives his appointment only from the 
last house, the authority of w^hich expires vidth itself. A rule of the 
house first adopted in 1791 ^ declares that the clerk " shall be 
deemed to continue in office until another be appointed," but inas- 
much as the system of standing orders is not in use in this country, 
and each house adopts its own rules and orders, at the commence- 
ment of every congress, usually taking for this purpose those of its 
predecessors in office, there is commonly an interval during which 
the clerk is elected, when the rule in question is not yet adopted, 
and when, consequently, it is not in force, either as a rule of the old 
or the new house. The practice above described, though sanctioned 
by long usage, has no ground either of constitution or law, to rest 
upon, and has already led to inconvenience. Wherever it prevails, 
it demands the regulation of the legislative powder. 

275. The mode of organizing a legislative assembly may doubt- 
less be regulated, as it has been in Massachusetts,^ by law, "^'hethei 
express authority is given to this effect or not by constitution ; but 
it has been deemed so important in Rhode Island and Ohio, that in 
the constitution of the former State it is provided, that " the organi- 
zation of the tv^'o houses may be regulated by law," and the consti- 
tution of the latter declares, that " the mode of organizing the house 
of representatives, at the commencement of each regular session, 
shall be prescribed by law." In the constitution of Indiana, it is 
merely provided, that if a quorum of either house is in attendance, 
and the members present fail to effect an organization thereof v^dthin 
five days, such members shall receive no compensation from the end 
of said five days until an organization is effected. Whenever the 
m.ethod of proceeding is thus pointed out, it must, of course, be 
pursued. The constitution of Rhode Island also provides further 
that " The senior member from the to^\m of Newport, if any be 
present, shall preside in the organization of the house." 

276. The three essential parts of an organization are the qualifi- 
cation of the members, and the choice of the presiding and record- 
ing officers. In some of our legislative bodies, the speaker or presi- 
dent is first chosen, then the members are quahfied, and lastly, the 

1 Eule 21. 2 Act of 1S44, c. 1-13. 



Chap. L] assembling, qualifying, organization. 107 

clerk or secretary is chosen ; in others, the members are first quali- 
fied, then the clerk elected, and lastly the presiding officer ; and, in 
others, again, the members being first qualified, the election of the 
speaker or president precedes that of clerk. 

277. When either branch is duly organized to proceed to busi- 
ness, M^hich takes place when the members returned have taken the 
necessary oaths, and have chosen their presiding ofhcer, a message 
is then to be sent to the other branch to inform it of the organiza- 
tion of the former ; and when the two branches are organized, they 
join in sending a message to the executive, to inform the latter that 
a quorum of each branch has assembled, that they are duly organ- 
ized to proceed with the public business, and are ready to receive 
any communication he may make to them. Each branch should, 
at the same time, or by separate message, inform the executive of 
the name of the presiding officer, of whom they make choice. The 
name of the clerk of each branch when chosen should be notified to 
the other and to the executive. This is done afterwards, whenever 
a change, either temporary or permanent, takes place in these officers. 
This notification is not a mere ceremony, inasmuch as the names 
of these important officers ought not to be left to find their way to 
the executive by chance or accident, but is necessary as a matter 
of business, in order that the latter may be informed to whose signa- 
ture as attesting officer of the two branches credit is to be given. 

278. Each branch, when duly organized, and without waiting 
for the organization of the other, may proceed to the transaction of 
any business, of which it has exclusive jurisdiction, by itself, and 
which does not require the intervention of the other ; and, therefore, 
until both are organized should not send the above-mentioned no- 
tice to the executive. In the mean time, either branch, as soon as 
it is duly organized, may proceed, for example, to investigate and 
settle the rights of conflicting claimants to seats. So, the senate of 
the United States, which in various respects is an executive council, 
as well as one branch of congress, may proceed with executive busi- 
ness, and may notify the president accordingly, before the house of 
representatives has completed its organization. 

279. The members of a legislative assembly, who are duly re- 
turned, having taken the oaths necessary to qualify them to dis- 
charge the functions of members, are all precisely equal in point of 
right, among themselves, and have an equal right to participate in 
all the proceedings of the assembly, so long as their election is not 
Bet aside, or until, in some other way, they cease to be members of 
the assembly. 



A 

108 LEGISLATIVE ASSEMBLIES. [PaRT II. 

280. Members, under restraint in the custody of the sergeant-at- 
arms, either to answer a complaint against them, or as a punish- 
ment,^ cannot, of course, while they are so restrained, participate in 
the proceedings of the assembly. Members m^ay also be suspended 
by way of punishment from their functions as such, either in whole 
or in part, for a limited time. Suspension is included in the right 
to expel, but expulsion puts an end altogether to the right of a 
member. Members under restraint, and those under suspension, 
retain, of course, the privileges, technically so called, of members. 

281. Delegates in the lower house of congress, from the territo- 
ries of the United States, stand upon a some^v^hat dilferent footing. 
They are so called, not because they exercise the functions merely 
of agents, but probably because they are deprived of some of those 
of members. In every territory of the United States where a tem- 
porary government is established, which has conferred upon it the 
right to send a delegate to congress, it is provided by law that such 
delegate shall be elected every second year, in the same manner, 
and for the same term of two years for which members of the house 
of representatives in congress are elected ; and shall be entitled to 
a seat in that house, with the right of debating therein, but not of 
voting.2 

282. Under these provisions of law, delegates take their seats as 
members, and their returns and elections may be controverted as 
such ; ^ they are entitled to the pay * and privileges of members ; 
and are amenable in like manner to the house. In participating in 
the business of the house, a delegate is allowed to present petitions 
and other papers of a like nature ; ^ to be of a committee ^ and to 
act as chairman, and make reports as such ; ' to offer orders or reso- 
lutions ^ for the adoption of the house ; and, generally, to make any 
motion, either original, or which may be necessary for the transac- 
tion of other business.^ But his right, in this respect, is limited to 
motions which do not involve the right of voting on his part. Thus, 
he may make a motion for the previous question,^'^ but he cannot 
participate in seconding such a motion ; because, by a rule of the 
house of representatives in congress, the seconding of the previous 
question takes place only by the votes of a majority of the members. 

1 Cong. Globe, XVm. 928; May, 265. « J. of H. ^^. 128. 

2 Act of March, 1817. ' M. of H. VII. 108, 112, 113, 

3 Cong. Globe, X. 83; Cong. Globe, XI. 1; s j. of H. 31st Cong. 1st Sess. 1216; Cong. 
Cong. Globe, XXI. 1038. Globe, ^TIL 541, 547. 

* J. of H. n. 232, 239; Cong. Globe, Vn. ^ Reg. of Deb. IH. 805, 806. 
102. 10 J. of H. 15th Cong. 2d Sess. 239; Same, 

6 J. o'' H. vn. 116. 30th Cong. 2d Sess. 103. 



Chap. II.] officers. 109 

So he cannot make a motion to reconsider a vote,^ because, by a 
rule of the house, a motion to reconsider can only be made by one 
who voted in the affirmative of the question which it is proposed to 
reconsider. Delegates are members in eveiy respect, except that of 
voting,^ but they are not counted to make up a quorum of the 
house ; and, though they have no right to vote, they are usually 
allowed to express their approbation of particular measures, by an 
entry, to that effect, on the journal.^ 



CHAPTER II. 

OP THE OFFICERS OF A LEGISLATIVE ASSEMBLY. 

283. In the several constitutions of the United States and of all 
the States, the right of each of the legislative assemblies therein 
established to choose its own officers, except, in some cases, its pre- 
siding officer, who is otherwise designated, is expressly secured, in 
appropriate language, to the assemblies themselves ; leaving it to 
them to determine what officers are proper and convenient or 
necessary for the despatch of its business for each assembly to have ; 
and these officers may be chosen by ballot or orally, and by majori- 
ties or pluralities, according to usage, or the rules of each assembly. 
Unless otherv\dse specified, the election or appointment is for the 
whole period of the legislative existence of the body by which it 
takes place, or until the death, resignation, or removal from office 
of any one of the officers thereby elected or appointed. "When the 
presiding and the recording officer are chosen, there are usually no 
general rules in force. The officers of a legislative assembly, if 
there is no rule to the contrary, may be appointed by resolution.^ 
But, in whatever way the officers of a legislative assembly may be 
appointed, they may be removed by a simple resolution to that 
effect.^ 

1 J. of H. 31st Cong. 1st Sess. 1280; Cong. 28th Cong. 2d Sess. 223 to 233; Same, 29th 
Globe, XII. 274; Cong. Globe, XXI. 1552. Cong. 1st Sess. 101; Same, 30th Cong. 1st 

2 J. of H. 31st Cong. 1st Sess. 1280. See Sess. 923; Cong. Globe, XV. 12; Cong. Globe, 
also Cong, Globe, VIII. 547. XVIII. 855. 

8 J. of H. VIII. 470, 471. 5 J. of H. IX. 682. See also J. of H. 31st 

*J. of H. 21st Cong. 1st Sess. 9; Same, Cong. 1st Sess. 712, 713, 716. 

10 



110 LEGISLATIVE ASSEMBLIES. [PaRT II, 

284. The principal officers necessary to enable a legislative as- 
sembly to perform its various functions are three, namely ; a pre- 
siding officer, called the speaker or president ; a recording officer, 
denominated the secretary or clerk ; and an executive officer, some- 
times known as the messenger, but more commonly, the sergeant- 
at-arms. Besides these, there are officers of a less essential charac- 
ter, such as the chaplain and printer, and others of a subordinate 
description, as the assistant clerks, engrossing clerks, committee 
clerks, stenographers, door-keepers, and messengers of the sergeant- 
at-arms. All these officers, with the exception of the subordinates, 
who are usually appointed by their principals, and, in some States, 
the presiding officer of the senate, who is otherwise designated,^ are 
chosen by the assembhes themselves, in vktue of constitutional pro- 
visions. 

Section I. Presiding Officer. 

285. In parliament, the presiding officer of the lords is the lord 
chancellor, who, unless he is at the same time a peer of the realm, 
is not a member of the house and has no right to speak or vote. 
In the commons, the presiding officer is always a member, who, 
being duly elected to the office by the house, is denominated the 
speaker, in Latin, prolocutor. The appellation of speaker is prob- 
ably derived from the principal function exercised by this impor- 
tant officer, in the earliest periods of parliamentary history, and 
perhaps at the time when the whole parliament sat together. The 
chief business of the speaker originally was to express the wHW. of 
the commons, and to speak for them, in all the proceedings of the 
parliament in which they were allowed or required to participate ; 
the ascertaming of what their will was being doubtless, at that 
period, attended with little or no difficulty, and therefore a very 
subordinate and unimportant branch of the speaker's duty. In 
modern times, though the speaker still remains in some sense the 
formal mouth-piece of the house, the duty of presiding over its 
deliberations, and ascertaining its will, has become the principal 
and much the most important of all his functions. 

286. In the legislatures of the United States, the presiding 
officer of the lower or popular branch is called the speaker ; and, in 
some of them,^ the same appellation is given to the presiding officer 

1 Where the presiding officer, being desig- election of the members of the assembly over 
nated in this way, is absent, or his place is • which he presides. 

otherwise vacated, the vacancy is filled by - Pennsylvania, Delaware, North Carolina, 

Tennessee, Illinois, Kentucky. 



Chap. IL] officers. Ill 

of the other branch ; but, in the greater number, the title of the 
latter is the president. If the origin of the word speaker, which 
has just been given, is correct, the term president is doubtless the 
most appropriate of the two to designate the presiding officer of a 
deliberative assembly of any kind. 

287. The word chairman is frequently used to designate the 
presiding officer, but, not, of any legislative assembly ; being more 
commonly applied to committees, and other assembfies of a tem- 
porary character. This term seems to derive its origin from the 
circumstance that in early times the presiding officer alone was 
furnished with a chair ; because he must necessarily sit by himself, 
apart from the others, who were provided only with benches. 
Hence in modern times the presiding officer frequently denomi- 
nates himself, and is spoken of by others, as the chair. The ^vord 
moderator is sometimes used to denote a presi/iing officer ; origi- 
nally it applied to one who presided in a disputation, for the 
purpose of restraining the contending parties from indecency, and 
confining them to the question. In modern times, with the excep- 
tion of town meetings in Massachusetts, which are presided over by 
a moderator, that term is more commonly used to denote the pre- 
siding officer of an ecclesiastical tribunal or council; not perhaps, 
because the proceedings of such a body, more than those of any 
other, require an appHcation of the peculiar functions of a moder- 
ator, but, probably, because it was the business of such assemblies 
to settle disputed points, by means of forensic argument, rather 
than to deliberate upon subjects or measures generally. 

288. The functions of the speaker of the house of commons are 
somewhat different from those of the lord chancellor, as presiding 
officer of the house of lords. The latter, though he presides in a 
deliberative assembly, is invested with no more authority for the 
preservation of order than any other member; and, if not himself a 
member, his office is limited to the putting of questions, and other 
formal proceedings. The lord chancellor, if he is a peer, may 
address the house, and participate in the debates as a member ; but, 
as his opinion is liable to be questioned, like that of any other peer, 
he does not often speak to points of order. If a peer, he votes with 
the other members ; if not, he does not vote at all. There is no 
casting vote in the lords ; if the house is equally divided, the 
motion fails, and a record thereof is accordingly made on the 
journal, with the words accompanying, that in such cases, semper 
prasiimitur pro neg-ante. 

289. It was probably upon the ground of some supposed analogy 



112 LEGISLATIVE ASSEMBLIES. [PaRT "IL 

between the functions of the vice-president of the United States as 
president of the senate, and those of the lord chancellor, as the 
presiding officer of the house of lords, that Mr. Calhoun, Vv^ien vice- 
president, in 1826, decided, in effect, that, as president of the 
senate, he had no power of preserving order, or of calling any 
member to order, for words spoken in the course of debate, upon his 
o^\^l authority, but only so far, as it was given and regulated by 
the rules of the senate. This decision occasioned great sm-prise, 
and gave rise, at the time, to some severe remarks. As a practical 
question, it was in part settled in 1828, by the adoption of a rule, 
that "every question of order shaU be decided by the president, 
without debate, subject to appeal to the senate." As a question 
of constitutional right and duty, it is difficult to perceive any reason 
for doubting, when the constitution declares expressly, that the 
vice-president of the United States shaR be president of the 
senate, that it intended to invest him with the ordinary powers of 
a presiding officer. 

290. The functions of the speaker of the house of commons, are 
thus summed up by a late English writer r^ — " The duties of the 
speaker of the house of commons are as various as they are impor- 
tant. He presides over the deliberations of the house, and enforces 
the observance of all rules for preserving order in its proceedings ; 
he puts all questions, and declares the determination of the house. 
As ' mouth of the house,' he communicates its resolutions to 
others, conveys its thanks, and expresses its censure, its reprimands, 
or its admonitions. He issues warrants to execute the orders of the 
house for the commitment of offenders, for the issue of writs, for 
the attendance of witnesses, for the bringing up prisoners in cus- 
tody, and, in short, for giving effect to all orders which require the 
sanction of a legal form. He is, in fact, the representative of the 
house itself, in its powers, its proceedings, and its dignity. When 
he enters or leaves the house, the mace is borne before him by the 
sergeant-at-arms ; when he is in the chaii', it is laid upon the table ; 
and, at aU other times, when the mace is not in the house, it is 
with the speaker, and accompanies him upon all state occasions." 
The duties of the presiding officers of our legislative assemblies are 
substantially the same as here described. In some points differ- 
ences will be found to exist, "which wiR be noticed hereafter.^ 

291. The duties of the presiding officer of a legislative assembly, 

* May, 195. officer, in connection with the several topic? 

■■^ We shall have occasion to refer more par- to which they relate. 
ticularly to the various duties of a presiding 



Chap. II.] officers. 113 

are manifold and various, corresponding in some sort with the dif- 
ferent functions in which the assembly may be engaged. 

In its ordinary capacity of a legislative body, his duties are : — 

To open the sitting of each day, by taking the chair and caUing 
the assembly to order : 

To announce the business before the assembly, in the order in 
which it is to be acted upon : 

To receive and submit in the proper manner all motions and 
propositions presented by the members : 

To put to vote all questions properly submitted and announce 
the result : ^ 

To restrain the members when engaged in debate within the 
rules of order : 

To enforce the observance of order and decorum among the 
members : 

To receive messages and other communications from other 
branches of the government, and "announce them to the assem- 

bly: 

To authenticate by his signature, when necessary, aU the acts 
orders, and proceedings, of the assembly : 

To inform the assembly, when necessary, or when referred to for 
the purpose, in a point of order or practice : ^ 

To name the members (where this is made by rule a part of his 
duty) who are to serve on committees : 

To decide, in the first instance, and subject to the revision of 
the house, all questions of order, that may arise, or be submitted 
for his decision : 

To issue his warrant, when directed, for the execution of the 
orders of the assembly, in the arrest of offenders, or the summoning 
of witnesses. 

292. Where a legislative body is engaged in its judicial func- 
tions, it is the duty of the presiding officer to conduct the proceed- 
ings, to put questions to parties and witnesses, and to pronounce 
the sentence or judgment. 

293. When the assembly is engaged in any of its high adminis- 
trative functions, or in matters of state or ceremony, as for example, 
when a member or other person is to be reprimanded or thanked, 
the presiding officer is the mouth-piece and organ of the body.^ 

1 In the house of commons the speaker puts chair, when questions are under discussion in 

aU questions, even those which concern him which he is personally interested, 

personally. See Comm. Jour. XXXII. 708; 2 Hatsell, II. 243. 

and Hans. (1) X. 1170. In this country, he, » Hatsell, II. 247. 
generally, calls some other member to the 

10* 



114 LEGISLATIVE ASSEMBLIES. [PaRT II. 

294. The presiding officer, though entitled on all occasions to be 
treated Tvith the greatest attention and respect by the individual 
members, because the power, and dignity, and honor of the assem- 
bly, are officially embodied in his person, is yet but the servant of 
the house, to declare its will and to obey implicitly aU its com- 
mands.^ He is selected and appointed to the trust of presiding 
officer, in the confidence, and upon the supposition, of the con- 
formity of his will to that of the assembly. In all his official acts 
and proceedings, therefore, he represents and stands for the assem- 
bly ; and his will is taken for that of the whole body, compendiously 
expressed through him, and by his mouth, instead of being col- 
lected from the individual mils of aU the members.^ 

295. In order to the convenient and proper discharge of these 
duties, they must be confided to a single person ; for, if there were 
two, upon any difference of opinion, nothing could be done without 
appealing to the assembly ; and, if there were more than two, or, 
in other words, if the duties of presiding were placed in the hands 
of a committee, the debating and deciding in this little assembly 
would only have the effect to prolong the proceedings to an incon- 
venient length.'^ 

296. The office must also be permanent, not only to avoid the 
inconvenience of frequent elections, but because its duties wHl be 
more likely to be well performed by a permanent than by a tempo- 
rary officer. The former will have more experience, and a better 
knowledge of the members ; wiU be more familiar with the course 
of business ; and will feel a stronger interest to do it properly. A. 
permanent president, fiable to be deprived of his office only in con- 
sequence of an unfaithful or inadequate discharge of its duties, vnU. 
be thereby the more strongly induced to perform them well ; a con- 
sideration, which can have no effect upon one elected for a certain 
period, who, whether he acquits himself weU or ill in his office, must, 
at aU events, give it up at the appointed time.'^ The speaker of the 
house of commons accordingly holds his office during the whole 
term of the parliament to which he is elected a member ; and, in this 

1 " This duty," says Hatsell, " is extremely eyes to see, nor tongue to speak, in this place, 

well expressed, in a very few words, by Mr. biit as the house is pleased to direct me ; whose 

Speaker Lenthall; who, when that ill-advised servant I am here; and humbly beg yourmaj- 

monarch, Charles L, came into the house of esty's pardon, that I cannot give any other 

commons, and having taken the speaker's answer than this, to what your majesty is 

chair, asked him, ' Whether any of the five pleased to demand of me.' " Hatsell, U. 2i2 

members that he came to apprehend were in - Dumont, 78. 

the house? whether he saw any of them? and ^ Dumont, 77. 

■where they were?' — made this answer: — * Dumont, 77. 
' May it please your majesty, I have neither 



Chap. IL] officers. 115 

country, the presiding officers of our legislative assemblies hold 
their offices, to the end of the term, for which their respective legis- 
latures have been elected ; notwithstanding any adjournment, or 
prorogation, that may take place in the mean time. 

297. It is essential, also, to the satisfactory discharge of the 
duties of a presiding officer, that he should possess the confidence 
of the body over which he presides, in the highest practicable de- 
gree. It is apparently for the purpose of securing this necessary 
confidence, that the presiding officer is required to be chosen by the 
assembly itself, and by an absolute majority of votes ; that he is 
removable by the assembly at its pleasure ; and that he is excluded 
from aU participation in the proceedings as a member. Each of 
these particulars requires to be briefly considered. 

298. I. In regard to the election by the assembly itself of its 
presiding officer, the rule above stated can hardly be considered as 
admitting of an exception, even in those legislative bodies,.in which, 
for special reasons, the presiding officer is designated by the consti- 
tution, instead of being chosen by the members ; inasmuch, as in 
these cases, the presiding officer is chosen by the same authority by 
which the members are chosen. The constitution of the United 
States and the constitutions of fifteen of the States designate the 
presiding officer of the first branch of the legislature in this manner, 
the first declaring that the vice-president of the United States shall 
be president of the senate ; the others providing that the lieutenant- 
governor elected in each, respectively, shall exercise the functions 
of presiding officer of the first branch of the legislature therein ; and 
all conferring authority upon the bodies thus presided over to elect 
one of their own members as temporary presiding officer in place 
of the officer appointed, in case of his absence or disability. The 
States, in which the lieutenant-governor thus acts, in virtue of his 
office, as presiding officer of one branch of the legislature, are those 
of Vermont, Rhode Island, (in this State the governor is the pre- 
siding officer of the senate, if present,) Connecticut, New York, 
Virginia, Louisiana, Kentucky, Ohio, Indiana, Illinois, Missouri, 
Texas, Wisconsin, and California. In the constitution of the United 
States and in those of all the States above named, except that of 
Virginia, (in which it is declared, that the lieutenant-governor shall 
preside in the senate but shall have no vote therein,) it is provided, 
that the presiding officer thereby designated shall give the casting 
vote, when the body over which he presides is equally divided ; in 
the constitutions of the United States and in those of Vermont, 
Ehode Island, New York, Louisiana, Ohio, Wisconsin, and CaH- 



116 LEGISLATIVE ASSEMBLIES. [PaRT II. 

fornia, by the use both of affirmative and negative terms ; and in 
the other constitutions above mentioned by the use of affirmative 
terms only. This right of the lieutenant-governor is extended, in 
the State of Rhode Island, to what is there called a grand com- 
mittee, and in Missouri to a jomt vote of the two houses. In Con- 
necticut and Missouri, the lieutenant-governor is permitted to 
debate, and in the States of Kentucky, Indiana, Illinois, and Texas, 
to debate and vote, when the body over which he presides is in 
committee of the whole. In the constitution of Vermont, the pro- 
vision is general, that the president of the senate (whoever may be 
exercising the duties of that office) shall have a casting vote therein, 
but no other. In regard to the number of votes necessary to elect, 
it seems to be a rule established at least by practice and usage, that 
nothing short of an absolute majority Avill be sufficient, even in 
those States where the election of other officers takes place by a 
plurality. In the house of commons, Avhere several persons are 
proposed as candidates for the office of speaker, an election is made 
by putting a question in the ordinary manner on each name pro- 
posed, separately, instead of allowing aU the candidates to be bal- 
loted for at the same time, and awarding the office to him who 
receives the greatest number of votes. Li this mode of proceeding, 
no one can be elected wdthout receiving a majority of all the votes; 
though, in aU other elections, even of committees of the house 
chosen by ballot, a plurality A\^ould be sufficient. The same prac- 
tice is understood to prevail m this country, and as well in the 
assemblies of those States, in which elections ordinarily take place 
by pluralities, as in those in which an absolute majority is requisite, 
and Avithout regard to the form of election, whether by oral suffrage 
or by ballot.^ Whether this practice had its origin from accident, 
or design, is perhaps doubtful ; its effect undoubtedly has been to 
give the presiding officer a stronger hold upon the confidence of the 



1 In the house of representatives in con- -memorable contest began on the third of De- 
gress, the speaker has alwaj-s been elected, cember, 1849, and ended on the twenty-second, 
without any previous order of the house, or after sixty-three bulletin gs. Previous to the 
provision of law,, to that effect, but simply in last balloting, a resolution was adopted, that 
virtue of a resolution of the house, to proceed at the next trial, in order to insure an organi- 
to the election of a speaker. On one occasion, zation, a plurality should be sufficient to elect, 
and the only one, it is believed, that ever took At the last balloting Mr. Cobb received 102 
place, this principle was departed from; the votes out of 222, and was accordingly declared 
election of speaker of the house in the thirty- elected. The vote had previously stood 100 
first congress, contested principally between for Mr. Winthrop, 102 for lilr. Cobb, and foi 
the Hon. Robert C. Winthrop, of Massachu- various other persons 22. See the Cong 
setts, who had been speaker of the last house. Globe, volume XXI. 
and the Hon. Howell Cobb, of Georgia. That 



Chap. II.] officers. 117 

assembly, than he would have, if elected by a bare plurality. If a 
plurality alone was sufficient to elect, it might and probably would 
happen, frequently, that an election would be made by a number 
less than a majority ; in which case, the person elected might be 
instantly removed by those who were opposed to his election, who 
would of course constitute a majority of the whole. 

299. II. The presiding officer, being freely elected by the mem- 
bers, by reason of the confidence which they have in him, is remov- 
able by them, at their pleasure, in the same manner, whenever he 
becomes permanently unable, by reason of sickness, or otherwise, to 
discharge the duties of his place, and does not resign his office ; or, 
whenever he has, in any manner, or for any cause, forfeited or lost 
the confidence upon the strength of which he was elected.^ 

300. III. The duties of a presiding officer are of such a nature, 
and require him to possess so entirely and exclusively the confidence 
of the assembly, that, with certain exceptions, which will presently 
be mentioned, he is not allowed to exercise any other functions 
than those which properly belong to his office ; that is to say, he is 
excluded from submitting propositions to the assembly, from par- 
ticipating in its deliberations, and from voting. The advantages 
of these restrictions are supposed to be threefold; first, the presiding 
officer is thus left to devote himself exclusively, to his official duties, 
and to the cultivation of the peculiar talents which they require ; 
which would hardly be the case, if he were called to take the part 
and sustain the reputation of a member, and were influenced by any 
other ambition than that of performing well the duties of his office ; 
second, he is thereby secured against the seductions of partiality, 
and is placed beyond the reach even of suspicion, by being excluded 
from engaging as a party, in debates and proceedings, in which it 
may become his duty officially to act as judge ; and, third, he is 
relieved from the danger of Aveakening his personal consideration, 
by failing in the measures he undertakes, or by giving cause of 
offence to his associates, to which a participation in the proceed- 
ings as a member would inevitably expose him. 

301. Certain exceptions to this rule result from necessity or 
convenience, namely ; the presiding officer may be of a committee,-^ 
may submit or rather suggest motions and propositions, relating to 
matters of form, the proper course of proceeding, or the order of 

1 Jefferson's Manual, § 9; Grey, II. ISO; might substitute another to perform its duties 

Same, V. 134. while he makes the report ; or the latter might 

' Comm. Deb. VI. 297. In this case, as it be made by some other member of the coin- 
might not be convenient for the speaker him- mittee. 
self to make the report while in the chair, he 



118 LEaiSLATIVE ASSEMBLIES. [PaRT I_ 

business; he may engage in the debate by special leave of the 
house, or when the assembly is in committee of the whole, or when 
a question of order is under consideration ; and, when the assembly 
is equally divided on any question, it is not only the right, but also 
the duty, of the presiding officer to give a casting vote.^ 

302. The exceptions, stated in the preceeding paragraph, except 
the last, require no farther notice; but in view of the constitu- 
tional provision above mentioned, and that the subject may be 
understood, it will be necessary to investigate, at some length, the 
right and duty of the presiding officer of a legislative body to vote 
in the proceedings thereof. At the time when our colonial legisla- 
tures were founded, and the method of their proceedings was 
established, the only examples of parliamentary form wliich they 
could foUow were to be found in the practice of the two houses of 
the British parliament. The peers sat together as a deliberative 
body, and a branch of the national legislatiu'e, but they were not a 
representative body, each of them sat and voted in his own indi- 
vidual right. The lord chancellor attended in vu"tue of his office 
with other great officers of the crown, in the house of peers, and 
collected their sense upon aU questions that came before them, but 
he could scarcely be said to preside in the house of peers ; and he 
did not vote at aU, unless he happened to be a peer, which was not 
always the case, and as such, entitled to participate in their pro- 
ceedings in his own individual right; in which case he was a 
member of the body, and voted with the others. In this mode, it 
sometimes happened, that when all the votes had been given on 
both sides of a question, the sides were equal. In this case, as a 
majority could not be reckoned on either side, the affirmative of the 
question could not be said to prevail, but inasmuch as the votes 
given for the negative were sufficient in number to neutralize the 
votes given on the other side, and to prevent them from prevailing, 
such question was properly held to be decided in the negative. But 
in the house of commons, the other branch of parliament, the prac- 
tice was not altogether the same. The house of commons was a 
representative body ; its members did not sit and vote in their own 
right, but in that of their constituencies ; their presiding officer was 
one of their own members chosen by themselves, and not appointed, 
but only approved, by the crown ; and he did not vote at aU, unless 
the t^\^o sides were equal, in number, in which case he gave what 
was called the casting vote. One of the earliest writers on parlia- 
mentary law thus states the rule,^ — " Upon the division, if the 

1 HatseU, U. 244, 245. = Scobel, 27. 



Chap. IL] officees. 119 

members appear to be equal, then the speaker is to declare his vote, 
whether he be a yea or wo, which, in this case, is the casting voice ; 
but, in other cases, the speaker gives no vote." Such was the 
practice of the two houses of the British parliament, when our 
ancestors emigrated, and established their colonial and provincial 
assemblies, in the proceedings and practice of which were laid the 
foundations of our present system of parliamentary practice ; and 
such has continued to be and now is the practice in that body. 

303. The casting vote is so called, not because on an equal 
division the question is decided by it, for, in fact, as we have seen, 
an equal division upon a question is a decision of it in the nega- 
tive, but the question is then in such a position, that it is in the 
power of a single vote to decide the question either way, by being 
given on that side. Thus, if the votes are equal on each side, the 
affirmatives do not preponderate, and if there are no more votes to 
be given, the question must necessarily be held to be decided in the 
negative ; but if there is another vote to be given, that vote must 
of course be a casting vote, because, on whichever side it is 
given, that becomes the preponderating side of the question. In 
the lords there is no such vote to be given ; the chancellor if he has 
a right to vote, as when a peer, having already voted as such on 
one side or the other of the question ; but the speaker of the com- 
mons is a member of the house, and if he was not in the chair 
would have the same right to vote with other members, and he has 
not voted on the question ; and his vote can decide either way a 
question which is as interesting and important to him and his 
constituents, as it is to the oiher members and their constituents. 
The only mode, by which the lords and commons could be put upon 
a footing, in this respect, w^ould be to allow the chancellor a vote in 
all cases, which would alter the constitution of the house of peers, 
or to authorize him, when a peer, to reserve his vote until the last, 
and to give it then as a casting vote, which besides the confusion 
that would thereby be introduced into the practice of parliament, 
would, so far, alter the constitution of the house of lords. For 
these reasons, it is presumed, a casting vote has always been 
refused to the chancellor, as presiding officer of the lords, and 
allowed to the speaker of the commons. 

304. It was very early demanded,^ that the speaker of the house 

1 The following passage occurs in Sir which took place in the house of commons 
Simonds D'Ewes's .Journals of Elizabeth's of her last parliament, held in the year 1601, 
Parliaments- It is from the proceedings on the question of passing a bill " for tha 



120 LEGISLATIVE ASSEMBLIES. [PaRT IL 

of commons should not only vote when the house was equally 
divided, and give a casting vote, but that he should also vote, \\^hen, 
there being a majority of only one, his vote, if given with the 
minority, would make that side equal with the other, and then 
decide the question on that side. But this claim was disallowed, 
and has not hitherto been renewed in England. In this country it 
has been maintained, on plausible grounds, that a presiding officer 
who is also a member had a right to vote on aU occasions. But 
the claim is inadmissible. 

305. The claim, asserted in the preceding paragraph, that the 
speaker had a right to vote whenever his vote would produce an 
equal division, and thus decide the question, is inadmissible for the 
following reasons : — First, The practice has always been differ- 
ent. Second, The speaker has only heretofore given a casting 
vote, that is, when his vote, if given on either side, would have the 
effect to decide the question on that side ; whereas, according to 
the claim in question, his vote could operate only, if given with the 
minority. Third, The question is aheady as effectually decided, 
according to the universal practice of all dehberative bodies, by a 
majority of one as it could be by a larger number. In view of the 
considerations stated in this and the preceding paragraphs, the fol- 
lowing principles, with regard to the right and duty of the presiding 
officer of a legislative assembly in this country, may be considered 
as established : — 

306. I. By a casting vote, is meant one which is given when the 
assembly is equally divided, and when the question pending is in 
such a situation, that a vote more on either side will cast the pre- 
ponderance on that side, and decide the question accordingly ; and 
not merely a vote, which, if given on one side, wih produce an 

more diligent coming to church on the Sun- stranger, a citizen of London and a member; 

day." The spealier was John Crooke, Esq., and therefore he hath a voice. To which it 

recorder of London. " So it was put to the was answered by Sir Walter BakigJi, and 

question thrice together, and because the confinned by the Speaker himself, that he was 

truth could not be discerned, the house was foreclosed of his Voice by taking that place, 

again divided, and the L L I went forth and M'hich it had pleased them to impose upon 

were a hundred and five, and the noes within him; and that he was to be inditlerent for 

were a hundred and six. So they got it by both Parties: And withal shewed, that by 

one voice, and the 1. 1. I lost; but then the order of the House the bill was lost.'' 
I. I. I said they had Mr. Speaker which Mr. Secretary Ceci7said: "For the matter 

would make it even. And then it grew to a itself, the noes were a himdred and six, and 

question, whether he had a voice. Sir Ed- the I. I. I a hundred and five, the Speaker 

wa7'd Hobble who was of the 1. 1. I side, said, hath no voice, and though I am sorry to say 

that when her majesty had given us leave to it, yet I must needs confess lost it is and fare- 

chuse our speaker, she gave us leave to well it." — D'Ewes's Journals, 683, 684. 
chuse one out of our own number and not a 



Chap. II.] officers. 121 

equal division of the assembly, and thereby prevent the other side 
from prevailing. This principle extends to cases of election by bal- 
lot.^ In these cases the speaker does not vote by ballot, but waits 
until the votes are i-eported, and then votes orally, not for whom he 
pleases, but for one, or for the requisite number, of the candidates 
voted for, who have received an equal number of votes. This prin- 
ciple applies equally in those cases where a less number than a 
majority is permitted, or a greater is requked, to decide a question 
in the affirmative. Thus, if one third only is permitted or required, 
and the assembly, on a division, stands exactly one third to two 
thirds, there is then occasion for the giving of a casting vote ; 
because the presiding officer can then, by giving his vote, decide 
the question either way.^ 

307. When the presiding officer is called upon to give the cast- 
. ing vote, he first states the vote on either side, and then that for 

certain reasons which he gives, he votes with the ayes or noes, as 
the case may be, and declares the question carried on that side. 
K, in consequence of a subsequent revision of the votes or other- 
wise, it is discovered that there was no occasion for a casting vote, 
but that the question was decided without it, the vote of the pre- 
siding officer is not reckoned with the others on the same side, but 
disregarded altogether as if it had never been given.'^ 

308. II. When the presiding officer is not a member of the 
assembly over which he presides, but holds that office by constitu- 
tional provision in virtue of some other to which he is elected or 
appointed, he has and can have no other authority as such than 
that conferred upon him by the power from which he derives his 
appointment, and, consequently, can only give the casting vote, 
where authority to do so is alone conferred. The power to choose 
one of their own members a temporary presiding officer, in case of 
the absence or other disability of the officer designated, though 
expressly given in most instances, is a necessary incident to a par- 
liamentary assembly in this country, and would be considered as 
given unless expressly withheld ; and upon such temporary pre- 
siding officer, the assembly may confer what authority they please. 

309. III. When the presiding officer is a member of the body 
over which he presides, he is entitled only to give the casting vote,^ 

1 Commons' Debates, XIII. 216, 217 ; Comm. when the speaker is counted to make up a 

Jour. XXIV. 153. quorum. Ordinarily, if, on a division, the 

» Cong. Globe, XV. 303, 304. two sides taken together do not amount to a 

8 J. of H. 30th Cong. 2nd Sess. 211. quorum, the question on which the division 

* There is no exception to this rule even takes place is not decided, but falls to the 

11 



122 



LEGISLATIVE ASSEMBLIES. 



[Paet IL 



which is his ordinary parliamentary privilege ; but Ms authority, in 
this respect, may be further restrained or enlarged by the constitu- 
tion or by-laws made by the legislative body, or by the rules of 
proceeding made by the assembly itself, in pm-suance thereof. This 
rule is confined strictly to ordinary parliamentary matters, such as 
the adoption of orders and resolutions, the appointment of commit- 
tees, the passing of bills, and the like. 

310. IV. But in this country, by constitutional and legal provis- 
ions, there are many duties in force upon our legislative assemblies, 
which are not parliamentary in their character, and especially are 
they frequently required to make certain important elections. In 
all these cases, where a proceeding, not of a parliamentary nature, 
is imposed by constitution or law upon a legislative assembly, the 
presiding officer, if a member, votes, in the first instance, like any 
other member, and does not give a casting vote.^ 

311. When it becomfes the duty of a presiding officer to give 
the casting vote, he may, if he pleases, give the reasons by which 
his vote is governed ; and this is no infringement of the rule, which 
prohibits him from participating in the proceedings ; because, at 
the time when he gives his vote, it is no longer in his power to 
sway or influence the assembly by his reasons or example. When 
the occasion for a casting vote arises in the preliminary or before 
the final proceedings, it is usual for the presiding officer to give the 
casting vote in such a manner, (at the same time stating his 
reasons,) as to give the assembly a further opportunity of consider- 



ground; but when the two sides, though they 
amount to less than a quorum, are yet enough, 
with the tellers and spealier, to make up a 
quorum, the question does not fall for want of 
a quorum, but is thereby decided. Thus, 
where the house of commons divided twenty- 
five ayes and eight nays, there being seven 
wanting to a quorum, which, of course, was 
not made up by the four tellers and the 
speaker, the question was not decided. Comm. 
Peb. Xn. 313 ; Comm. Jour. XXIH. 700. But 
where the division was twentj'-seven ayes 
and eight nays, the aggregate of which, with 
the two tellers on each side and the speaker, 
just made up a quorum, the question was 
thereby held decided. Comm. Jom-. XXXIX. 
845. 

1 The principles stated above are not at all 
impugned, but rather confinned, by the cele- 
brated vote given in the house of representa- 
tives of congress, by Mr. Speaker Macon, on 
occasion of the adoption of an amendment to 



the constitution of the United States in De- 
cember, 1803. On this important question, 
which proposed to change the form of bal- 
loting for president and vice-president, a two 
thirds vote being required, there appeared 
eightj'-three in the affirmative and forty-two 
in the negative, and one vote, therefore, was 
wanting in the affirmative to produce the con- 
stitutional majority. The speaker, (Mr. Ma- 
con,) notwithstanding the rule of the house, 
claimed a right to vote, and his claim being 
allowed by the house, he voted in the affirma- 
tive ; and it was by that vote, that the amend- 
ment was carried. It will be perceived, that 
this was an extraordinary occasion, and not a 
common parliamentary proceeding. The rule 
of the house then, as now, declared, that the 
speaker should not be required to vote unless 
the house was equally divided, or unless his 
vote if given for the minority, would make 
the division equal. 



Chap. II.J officers. 123 

ing the subject. The presiding officer, however, is at liberty to 
vote, even on preliminary questions, like any other member, accord- 
ing to his conscience, and either with or without assigning a 
reason. The reasons given on such occasions are entered in the 
journals.^ 

312. The rule of order, which prohibits the presiding officer from 
participating in Ihe proceedings and from voting, wdth the excep- 
tions nnd qualifications above stated, applies to all the legislative 
assemblies of the United States ; though, it is not uncommon, 
except, in Ihose bodies, in M^hich the presidmg officer is not a mem- 
ber, to authorize him to vote in aU cases, leaving it obligatory on 
him to do so only when the assembly is equally divided. Where 
the presiding officer is not a member of the body over which he 
presides, he has only a right to vote, as provided by all the consti- 
tutions, (except that of Virginia, which precludes him from voting 
at all,) when the assembly is equally divided, and gives the casting 
vote. In these assemblies, therefore, in all of which there is the right 
to choose one of their own members a temporary presiding officer, 
it is competent only to regulate or enlarge the right of voting of the 
latter, but not of their reg^alar presiding officer. Where the presid- 
ing officer exercises the privilege of voting in the first instance, and 
the votes are equally divided, the rule of the house of lords 
must be held to prevail, namely, that, on an equal division the 
negative is to be presumed, and consequently that the motion or 
question is resolved in the negative or, at all events, that it 
fails to be resolved in the affirmative, for want of a majority,^ 
in virtue of a rule to that effect. The rule of the house of 
representatives in congress, on this subject, which was first 
adopted in 1789, provides that, " In all cases of ballot by the 
house, the speaker shall vote ; in other cases he shall not be 
required to vote, unless the house be equally divided, or unless 
his vote, if given to the minority, will make the division equal, 
and in case of such equal division, the question shall be lost." 
The rule does not, in terms, require the speaker to give any 



1 One of the most remarkable cases of the place, it might be a question, whether the 

giving of a casting vote was that of Mr. motion is so far decided as to come withm 

Speaker Abbott's vote, in 1805, relative to this rule . But inasmuch as the question is 

Lord Melville, and which led to the impeach- declared to be decided in the negative and is 

ment of the latter. Hans. (1) IV. 320. so entered on the journal, as in all other cases, 

-When a question is made and decided without reference to the manner, in which it 

either affirmatively or negatively, the same was made, or to the number of votes, on 

question cannot be moved again during the either side, there can be no doubt that the 

same session. Where an equal division takes rule applies. 



124 LEGISLATIVE ASSEMBLIES. [PaRT TL 

other than a casting vote, in elections by ballot ; but, on these 
occasions, the speaker votes vdth the other members. It will be 
perceived, that this rule makes it imperative upon the speaker to 
vote only on two occasions, namely, first, T\"hen the house is 
equally divided in the first instance, wliich is the ordinary case of a 
casting vote, and, secondly, when there is a majority of only one 
in favor of the proposition, and the speaker is willing to vote 
against it. 

313. On the death, resignation, disqualification, or removal of 
the presiding officer, a new election takes place, in the manner 
akeady described. But, whenever by reason of sickness or other 
cause, the presiding officer is prevented from attending to the 
duties of his office, and is not likely to be able to resume them for 
some time, it is usual in all our legislative assemblies to elect a 
presiding officer, pro tempore, to preside until the former is again 
able to attend, in his place, or ceases to hold the office of pre- 
siding officer. The duties and functions of this temporary officer, 
if elected in place of a presiding officer who is a member of 
the body over which he presides, are ordinarily the same with 
those of the permanent president, during his absence, and termi- 
nate -uath the return of the latter to the chair; but, where the 
presiding officer is not a member of the body over which he 
presides, the functions and duties of the temporary presiding 
officer may be otherwise regulated by law or by a rule of the 
assembly. In most of the legislative assemblies of this coun- 
try, it is also provided by a rule, that the presiding officer if 
a member may substitute some other member to perform the 
duties of the chair, in his place, if he have occasion to be 
absent for a part or the whole of the then present sitting.^ But 
he is not obliged to announce the name of the substitute to the 
house; and, if the latter is in committee of the whole, the 
speaker may appoint some member to take the chair, and pre- 
side, when the committee rises. But such substitution ought 

1 It is remarkable, that, in the house of the crown, to officiate in the absence of the 

commons, it is not the practice to elect a chancellor; and when the latter and all the 

speaker pro tempore^ or to allow the speaker deputies are absent, the lords elect a speaker 

to substitute any other member temporarily pro tempore ; but he gives place immediately 

In his place. Several instances of the elec- to any of the lords commissioners, on their 

tion of temporary speakers occurred during arrival in the house; who, in their turn, give 

the time of the rebellion and of the common- place to each other according to their prece- 

wealth, but the example has not been imita- dence, and all at last to the lord chancellor, 

ted in more modern times. In the house of See Hatsell, 11. 22-3, note. In February, 1853, 

lords, on the contrary, several deputy speak- a select committee was appointed by the 

ers are usually appointed by commission from house of commons " to consider the best 



Chap. II.] officers. 12^ 

to be made as an official act, and when the presiding officer is 
himself in the chair of the assembly, or present in it, and cannot 
be made in his absence by letter or otherwise ; if the presid- 
ing officer is unable to attend, in person, at the commencement 
of the daily sitting of the assembly, his power of substitution 
no longer exists, and there is then occasion for the election of a 
temporary presiding officer.^ 

314. The authority to elect a presiding officer pro tempore^ 
where the presiding officer is not a member of the body over 
which he presides,^ is expressly given by all the constitutions, 
which designate the latter. But where the presiding officer is a 
member of the body over which he presides, the right to supply his 
place temporarily is admitted without any express provision, to 
that effect, either of constitution, or law, or by a rule of the assem- 
bly. When a temporary presiding officer is chosen, his election 
ought to be communicated to the other branch and to the execu- 
tive ; but this need not take place in the case of a mere substitu- 
tion. A temporary presiding officer authenticates papers by his 
signature ; one who is merely substituted by the presiding officer 
does not. The presiding officer usually names some other member 
to perform the duties of the chair, when he has occasion to address 
the house as a member, or when any matter is before the assembly 
in which he is interested.^ Where the presiding officer of a legis- 
lative assembly is appointed by law, in virtue of his office, to per- 

means of providing for the execution of the ^ Jt appears to have been tlie practice of 

office of spealier, in the event of Mr. Speali- the Vice-President of the United States, for- 

er's unavoidable absence, by reason of illness merly, to go through with the ceremony of 

or of other cause." The report of this com- obtaining leave of absence, when he had 

mittee, which embodies all the learning on occasion to be absent from the chair; but 

the subject that could be found in the Jour- this practice has been abandoned for many 

nals or elsewhere, was made to the house, years. Such a presiding officer, when he 

and ordered to be printed, on the 12th of intends to vacate his place for the time being, 

May, 1853. The committee recommended the does so by being absent, or by giving previ« 

adoption of a standing order, that the place ous notice of his intention, 

of the speaker, when he was absent, should ^ In the 28th Congress, the election of Mr. 

be supplied, from day to day, by the chair- John W. Jones, of Virginia, who had been 

man of the committee of the whole on Ways elected speaker of the house, being contro- 

and Means, who acts as such during the ses- verted, the speaker substituted Mr. Beards- 

sion. In consequence of this report, resolu- ley, of New York, to perfonn the duties of 

tions were agreed to in 1853 by which the the chair when the committee of elections 

chairman of Ways and Means may take the was directed to be appointed, who named the 

chair during the temporary absence of the committee accordingly. On • every subse- 

speaker. quent occasion, when the same matter came 

1 See J. of H. 25th Cong. 1st Sess. 630 ; J. before the house both incidentallj' and finally 

of H. 28th Cong. 2d Sess. 509; J. of S. 32d the speaker substituted some member in tiis 

Cong. 1st Sess. 515 ; Reg. of Deb. VIIl. Part place to perform the duties of the chair. Sea 

3, 3, 68; Reg. of Deb. X. Part 3, 3, 62; Cong. Cong. Globe, XIII. 18, 21. 
Globe, XV. 804; Cong. Globe, XVII. 282. 

11* 



126 LEGISLATIVE ASSEMBLIES. [PaRT II. 

form other duties not of a parliamentary character nor of the 
assembly, these duties are performed by the presiding officer of the 
assembly, or the temporary presiding officer, and not by a substi- 
tute. 

315. In every legislative assembly, in which it is not otherwise 
provided, either by some law, or by a rule of its own, its ordinary 
functions are suspended during the absence of the presiding officer 
from sickness or from any other cause.^ The only business that 
can then be properly attended to is the choice of a speaker or presi- 
dent pro tempore, "v^^hich must be conducted in the manner already 
described; the clerk usually presiding and putting the necessary 
questions.^ 

316. One of the most important of the functions of a presiding 
officer, whether chosen by the assembly itself, or otherwise ap- 
pointed virtute officii, is the issuing of his warrant, when directed, 
for the arrest of offenders, or in the execution of the orders of the 
assembly.^ This instrument is in the form of a common criminal 
warrant,^ and is subject to no other formalities than are required 
with reference to other criminal \varrants. It is under the hand 
and seal of the presiding officer, and countersigned by the clerk of 
the assembly.^ When the warrant has been executed and returned, 
the service thereof, and what has been done in pursuance of it, are 
usually reported to the assembly by the presiding officer,*" and such 
order taken thereupon as the assembly may think proper. 

317. In our legislative assemblies, it is usual, either at the end 
of each session, or at the close of the period for which they were 
elected, to pass a resolution, thanking the presiding officer, in 
general terms, for the manner in which he has discharged the duties 
of his office. On these occasions the presiding officer usually calls 
some other member to the chair, when the resolution is under con- 
sideration, and takes a convenient opportunity, either at that time, 
or when he pronounces the final adjournment of the assembly, to 
express his ackno^edgments. The resolution of thanks, which is 
not ordinarily opposed, though it may be, like any other, is usually 



1 In Massachusetts, it is provided by a rule ^ J. of S. IIL 37, 51, 55, 60; Ann. of Cong, 

in the house of representatives, that in case IT. 68. 

the speaker shall be absent at the hour, to * Appendix, VI. 

■which the house shall be adjourned, the house ^ In one case, in which the warrant was 

shall be called to order by the oldest monitor directed to be issued for the arrest of the clerk 

present who shall preside until the speaker of the house, it was ordered to be counter- 

returns or a. temporary one is chosen. signed by the chief assistant clerk. See J. of 

» HatseU, XL 223. H. 28th Cong. 2d Sess. 222 to 233. 

6 Cong. Globe, IV. 175. 



ClIAP. IL] OFFICERS. 127 

moved and seconded by members opposed to the presiding officer 
in political sentiment. 

318. The quahties of a presiding officer are thus delineated by 
the author of the Lex Parliamentaria : " The speaker ought to be 
religious, honest, grave, wise, faithful, and secret. These virtues 
must concur in one person able to supply that place." ^ His func- 
tions in ancient times are no less aptly described by Mr. Sergeant 
Glanville,- in his speech to the king, on being presented as speaker : 
The house of commons " have met together and chosen a speaker ; 
one of themselves to be the mouth, indeed, the servant, of all the 
rest ; to steer, watchfully and prudently, in all their weighty con- 
sultations and debates ; to collect, faithfully and readily, the genuine 
sense of a numerous assembly ; to propound the same seasonably, 
and to mould it into apt questions, for final resolutions;^ and so 
represent them and their conclusions, their declarations and peti- 
tions, upon all urgent occasions, with truth, with right, with life, 
with lustre, and with full advantage, to your most excellent maj- 
esty." ^ 

319. The personal quahties, which the presiding officer of a legis- 
lative assembly in modern times ought to possess, have been often 
described, but never perhaps in more just, forcibly, or elegant terms, 
than by Sir William Scott, afterwards Lord Stowell, in his speech 
on nominating Mr. Speaker Abbott, for reflection, in 1802 : " To 
an enlargement of mind, capable of embracing the most compre- 
hensive subjects, must be added the faculty of descending with 
precision to the most minute ; to a tenacious respect for forms, a 
liberal regard for principles ; to habits of laborious research, powers 
of prompt and instant decision ; to a jealous affection for the privi- 
leges of the house, an awful sense of its duties ; to a firmness that 
can resist solicitation, a suavity of nature that can receive it with- 
out impatience ; and to a dignity of public demeanor, suited to the 
quality of great affairs, and commanding the respect that is requisite 
for conducting them, an urbanity of private manners that can soften 
the asperities of business, and adorn an office of severe labor with 
the concihatory elegance of a station of ease." ^ 

1 Lex Parliamentaria, 264; Townsend's question, which has now become nearly or 
Collections, 174. quite obsolete. 

2 Hansard's Parliamentary History, H. 535. < Hatsell, H. 242, note. 

3 Allusion is here made to a branch of the * Hans. P. H. XXXVI. 915 
speaker's duty, namely, the forming of the 



128 LEGISLATIVE ASSEMBLIES. [PaRT IL 



Sectioi7 IL Recoedixg Officer. 

320. The second of the officers, essential to a legislative assem- 
bly, and, with us, elected in the same manner with the speaker, is 
the recording officer, usually denominated the clerk or secretary. 
The clerks of the two houses of the British parhament receive their 
appointment from the sovereign, by letters patent, and hold their 
offices for life. The clerk of the lords is called the clerk of the par- 
liaments, and the clerk of the commons the under clerk of the par- 
liaments attending upon the commons. These titles are supposed 
to owe their origin to the form of the letters patent, pre^ious to the 
separation of the t^vo houses. When the separation took place, the 
under clerk went with the commons,^ and was afterwards described 
in the letters patent, as attending vpan the commons. The func- 
tions of these two officers are so essentially the same, that for the 
purpose of the summary statement, at present in view, it will only 
be necessary to refer to those of the clerk of the house of commons. 

321. K an appointment of a clerk of the commons takes place, 
whilst parliament is sitting, an entry of the fact is made upon the 
jom-nal; if during a recess, the new clerk enters upon his duties on 
the assembhng of the house, without any formal notice being 
taken of his appointment.^ In both cases he is previously sworn, 
in the presence of the lord chancellor, to be true and faithful to the 
king ; to know nothmg that shall be prejudicial to his crowm, 
estate, and royal dignity, v^ithout resisting it, and wdth all speed 
advertising his grace thereof, or at least some of his council, so that 
the same may come to Ms knowledge ; to serve the king weU and 
truly, in the office of under clerk of the parhaments attending upon 
the commons, " making true entries, remembrances, and jomiials, 
of the things done and past in the same ; " to keep secret aU such 
matters as shall be treated of in parliament, and not to disclose 
the same before they shall be pubHshed, but to such as they ought 
to be disclosed unto ; and, generally, well and truly to do and exe- 
cute all things belonging to him. to be done, appertaining to the 
office of under clerk of the parliaments.^ 

322. The clerk, in virtue of his office, has the right of appointing 
a deputy to take his place, and perform his duties ; wliich, in effect, 
amounts to the substitution, by the clerk, of another person to the 

1 Hatsell, n. 255, 282. ^ Hatsell, 11. 255. The teiTQs of this oath 

- Hatsell n. 264. are remarkable, with reference to the pohti- 

cal history of the house of commons. 



Chap. IL] officeks. 129 

office which he holds. The clerk also appoints the clerks assistant, 
the committee clerks, and others to perform such clerical duties, as 
are to be done out of the house ; ^ who are all subject to his direc- 
tion, — hold their appointments during his pleasure, — and are 
responsible to him, (as he is to the house,) for the due and exact 
discharge of the duties of their several offices.^ 

323. When the clerk appoints a deputy, he makes the appoint- 
ment in the usual manner by an instrument under seal, and then 
informs the speaker by a letter which is communicated to the 
house, that he desires leave to retire from any further execution 
of the duties of the office, and to appoint a certain person, naming 
him, as his deputy. The latter is then called in and takes the 
place of the clerk at the table.^ When a clerk assistant is to be 
appointed, the clerk informs the speaker, that with the approbation 
of the house, he has named such a person to be his clerk assistant ; 
the speaker acquaints the house with this nomination, and that 
the person so appointed attends at the door ; the assistant is then 
called in and takes his seat at the table.* 

324. Besides the clerk or his deputy, and the assistant, who sit 
at the table, the business of the house of commons requires sundry 
other clerks, namely : a particular clerk appointed to attend the com- 
mittee of privileges, whose duty it is also to attend the select com- 
mittees of elections, (and, when two or more of these committees are 
sitting at the same time, deputies to the clerk are appointed to 
attend them, by the clerk of the house) ; four principal clerks with- 
out doors, (each of whom has a deputy to assist him,) appointed to 
attend committees, who attend in rotation ; tw^o clerks who have 
the direction of the engrossing office, and have writing clerks under 
them for the engrossing ^ of bills ; a clerk to collect the fees and 
distribute them to the speaker and other officers of the house ; and 
a clerk who has the custody of the journals and papers, and who 
has several writing clerks under him. AU these officers are 
appointed by the clerk, not by any written or formal appointment, 
lilte the assistant and deputy, but by nomination only.*^ 

325. When the clerk or his assistant desires, for particular rea- 
sons, to absent himself for a time from the service of the house, his 



1 HatseU, 11. 256. always to be exercised with the leave of the 

« Hatsell, II. 267. house. See Hatsell, II. 254, 263. 

^ Hatsell, n. 254. ^ Xhe engrossing of bills is now dispensed 

* Hatsell, II. 263. Notwithstanding the with in both houses, and printing Fubstituted 

clerk has the appointment of the deputy and in its place. May, 563. 

assistant, his authority in this respect seems * HatseU, II. 264, 274. 



130 LEGISLATIVE ASSEMBLIES!. [PaRT II. 

request is communicated to the house by the speaker, and leave 
being granted, some one, not unfrequently a member, is appointed 
to attend in his place during his absence. The same thing 
occurs, when the clerk or his assistant is unable to attend from 
indisposition.^ 

326. The duties of the clerk, in making a record of the proceed- 
ings, are summarily set forth in the vi^ords of the oath, namely ; " to 
make true entries, remembrances, and journals, of the things done 
and past " in the house. But it is not his duty, to take minutes of 
" particular men's speeches," ^ or to make a record of what is 
merely proposed or moved, vv^ithout coming to a vote, or being 
introductory to one. It must be recollected, that, among things 
" done and past," negative as well as affirmative votes, being 
equally obligatory upon the house, are included. 

327. The clerk and his assistant attend at the table and take 
notes of the orders and proceedings ; from which the votes, as they 
are called, are made up and printed each day, agreeably to the 
order of the house, " under the direction of the speaker." At the 
end of the session, it is the business of the clerk to see that the 
journal of the session is properly prepared, and fairly transcribed, 
from the minute-books, the printed votes, and the original papers, 
that have been laid before the house.'^ It was formerly the prac- 
tice for a committee " to survey the Clerk's Book every Saturday," 
and to be intrusted with a certain discretion in revising the entries ; 
but now the votes are prepared on the responsibility of the clerk ; 
and after " being first perused by ]Mr. Speaker," are printed for the 
use of members, and for general circulation.* 

328. It is the duty of the clerk, also, and a part of his ordinary 
business, to read whatever is required to be read in the house ; to 
authenticate, by his signature, all the orders of the house, for the 
attendance of persons, for the bringing of papers and records, 
for the appointment and meeting of committees ; ^ and to certify 
and sign the biUs which pass the house.^ Lastly, the clerk has the 



1 Hatsell, II. 253, 254. See also J. of S. the temiination of the session. But now it 

20th Cong. 1st Sess. 130; J. of H. 29th Cong, seems (see Perrj^ & Knapp, 536,) that the 

1st Sess. 1012. votes are printed from day to day, and the 

- A supposed exception to this rule -n-ill be journal at an interval of about a week after- 
examined and considered in another place. wards. 

3 Hatsell, II. 267, 268. At the time of the * May, 200. 
publication of the last edition of Mr. Hatsell's 5 This happens only, when the time and 
work, (1818,) from which the above statement place of the meeting of a committee are ap- 
is taken, it was not the practice to print the pointed by the house, 
journal of the house of commons, until after ^ Hatsell, II. 268. 



Chap. IL] officers. 131 

custody of all the journals, papers, and files ; and, it is at his peril, 
if he suffers any of them to be taken from the table, or out of his 
custody, without the leave of the house.^ 

329. If any mistake or omission occurs in the entries of the 
clerk, and it is taken notice of or pointed out,^ on the same day, it 
may be corrected either by the order of the house, or by the clerk 
himself, without any order ; but, if the mistake or omission is not 
discovered until afterwards, it ought not to be corrected without 
an order of the house, upon the report of a committee appointed 
to investigate the subject.'^ 

330. The duties above specified, though set forth as the appro- 
priate duties of the clerk of the house of commons, are, in general, 
equally incumbent on the clerk of the other branch. But the clerk 
of the lords has also some duties, which are peculiar to that house, 
namely, those which arise from its being the highest judicial tribu- 
nal of ordinary resort, and from its being constituted a court of 
extraordinary jurisdiction for the trial of impeachments preferred 
by the other house. These differences are not of a character to 
require any particular notice in reference to the duties of the clerk. 
There are some slight differences, also, in the duties of the two, in 
reference to the custody of bills, and to the routine of business, 
which, so far as they may be necessary, will be stated in their 
proper place. 

331. Li the legislatures of the United States, the clerks as well 
as the other officers are required by the several constitutions to be 
appointed by the assemblies themselves ; and their offices expire, 
of course, with the authority of those from whom they are derived. 
In some States, provision is made by law, for the continuance in 
office of the clerks and other officers, until their successors are 
appointed. In the house of representatives, of the United States,- 
and, it is believed, in some of the State legislatures, it is the usage 
for the clerk of the preceding house to take a part in his capacity 
of clerk, in the organization of the succeeding one. Clerks are 

* Hatsell, II. 265. merit, is the journal of the preceding day read 

2 In the commons, Oct. 27, 16S0, it was to the house, or supposed to be read, at the 

ordered: " That the votes of each day be read commencement of each daily sitting, 

the day following the first business;" "Or- » jj^tsgi]^ jj, 266. 

dered. That a committee be appointed to in- * A rule of this body provides that the clerk 

spect the Journals of the House everyday; "shall be deemed to continue in office until 

and see that due entries be made therein." — another be appointed." This cannot refer to 

Comm. Jour. IX. 640. But the practice re- a succeeding congress, but only to subsequent 

Quired by these orders has been disused, sessions of the same congress, or to the tenure 

probably, since the printing of the votes. At by which the clerk holds his office. 
Ihe present daj'', in neither house of parlia- 



132 LEGISLATIVE ASSEMBLIES. [PaRT II. 

usually qualified by taking an oath of office ;i and are sometimes 
required to give bonds for the faithful disbursement of such sums 
of money as may pass through their hands, in the course of their 
official duties.^ 

332. The clerk of the house, in the execution of the duties of 
his office, which are exceeduigly multifarious, may, if necessary, 
apply for and receive the direction of the house ; ^ and, when 
appealed to concerning the state of the business, may respond 
thereto through the presiding officer.^ It is scarcely necessary to 
observe that vacancies may occur in this office, either perpetual, 
as by death,'^ resignation,^ or removal from office,' or temporary ,s 
merely, in which cases, the vacancy may be filled in the manner 
already spoken of. 

333. The number of the clerks employed in a legislative assem- 
bly, and their various duties and functions, mU, of course, depend 
upon the size of the body, and upon the nature and amount of the 
business which usually comes before it. Hence, in the legislatures 
of this country, a great diversity prevails ; in some there being but 
a single clerk ; in others, several ; and in others, again, some part 
of the duties, usually performed by the clerk, being imposed upon 
other officers.^ 

334. The powers and duties of the clerks of om- legislative as- 
semblies are substantially the same with those which have been 
just described, as belonging to the clerk of the house of conamons ; 
with the exception, probably, of the power of appointing deputies, 
assistants, and other subordinate officers and clerks. The right of 
electing their officers being conferred upon the legislative bodies by 
constitutional provisions, it would seem, that the mere election of a 
person to be clerk could not, of itself, give him a right, by impHca- 
tion, to appoint other officers, even in his o^^m department. Clerks 
may, however, employ persons to assist them in the discharge of 
their duties, in such manner as they may think proper, v^-ithout con- 
ferring on these persons any official character. Committees, with 

i The secretary of the senate, and the clerk ^ j. of H. 31st Cong. 1st Sess. 788. 

of the house of representatives, take an oath ^ J. of H. III. 736. 

of office, prescribed by the Act of June 1, ' J. of H. IX. 682 ; Same, 28th Cong. 2d 

1789. " Sess. 223 to 233; Cong. Globe, XIV. 147, 

- The officers above mentioned give bond 150. 

for the faithful application and disbursement s j. of H. VIH. 290; Same, IX. 169. 

of such contingent funds of their respective ^ In Massachusetts, for example, bills which 

houses as shall come to their hands. — Act of are usually engrossed by the clerk of the 

Februarv 23, 1815. house in vrhich they originate are engrossed 

* J. of H. IV. 255. in the office of the secretary of the common- 

* Cong. Globe, X. 68. wealth. 



Chap. IL] officers. 133 

the assent of the assembly, of which they are members, that they 
may employ a clerk, appoint one for themselves. The secretary of 
the senate, and the clerk of the house of representatives, of the con- 
gress of the United States, employ such clerks and assistants, as are 
deemed necessary, from time to time, by their respective houses. 
The number, which is usually quite considerable, is often varied. 



Section III. — Executive Officer. 

335. It is not enough, that a legislative assembly should have a 
presiding officer to ascertain and declare its wiU, and a recording 
officer to authenticate it ; an executive officer, to see that its will is 
obeyed, is, in certain cases, equally essential. In parliament, this 
officer is denominated the sergeant-at-arms, and is appointed by 
letters patent from the crown. If he conducts himself in such a 
manner as to forfeit the confidence of the house, the course is to 
address the crown to remove him and appoint another in his place. 
The corresponding officer, in this country, most generally bears the 
same title, though he is sometimes called the messenger. 

336. The duties of this officer are analogous to those of a sheriff 
in a court of justice. They consist principally in attending upon 
the assembly, — maintaining order among the persons there pres- 
ent, — serving the processes and executing the orders of the assem- 
bly, — giving notice to the presiding officer of persons attending 
with messages, or other communications, or in obedience to the 
orders of the assembly, — arresting persons, whether members or 
strangers, ordered to be taken into custody, — and restraining in 
confinement, in his custody or elsewhere, all persons subjected 
thereto by way of punishment. He has the appointment and 
supervision of various officers in his department, — such as the 
deputy-sergeant, messengers, and sometimes the door-keepers ; and, 
as house-keeper of the house, has charge of aU its committee-rooms 
and other buildings, during the sitting of the legislature. The 
door-keepers of the two houses of congress are independent officers 
appointed by the houses respectively. There is also an officer of 
the house called the postmaster. The number and occupations of 
the persons employed by the several legislative bodies are so vari- 
ous and diiferent, that they do not admit of a more exact enumera- 
tion. 

337. The sergeant-at-arms being the chief executive officer of the 
assembly, to whom the warrant of the presiding officer is directed, 

12 



134 LEGISLATIVE ASSEMBLIES, [PaET IL 

and by whom it is served, it is commonly against him that com- 
plaints are instituted,^ or actions brought - for executing the orders 
of the assembly." Li cases of this kind, the sergeant communicates 
the fact to the assembly, who thereupon assumes his defence, and 
orders the expense thereof to be defrayed out of its contingent 
fmid."^ Vacancies in this office may occur, and be filled, in the 
manner akeady mentioned.^ 



Section IV. — Chaplain. 

338. It has been the immemorial usage, in both houses of parlia- 
ment, to commence the sitting of each day with the reading of 
prayers. In the lords, this ser\dce is performed by the youngest 
bishop present, or, if none are present, by any peer in holy orders. 
Li the commons, prayers are read by a chaplain appointed by the 
speaker, or, as he is called, Mr. Speaker's Chaplain. It appears to 
have been the practice, at least, after the estabhshment of protes- 
tantism, in the time of Elizabeth, for the clerk of the house to read 
prayers, from the book of common prayer, and for the speaker also 
to read a special prayer composed by himself and " fitly conceived " 
for the time and purpose, every morning dming the session. Some 
of the speaker's prayers,*^ which are preserved in the journals, are 
composed in a style, which would do credit to any bishop of the 
time. It is probable, that this practice was discontinued during the 
civil wars and the commonwealth. The present practice has pre- 
vailed for many years. JMr. Speaker's chaplain, besides a pecuniary 
compensation, usuaUy receives some advancement in the chm-ch, for 
his services in that capacity. Absence from prayers was anciently 
punished by a small fine, for the use of the poor. At the present 
day, no fine is payable for non-attendance, but presence in a par- 
ticular seat at prayers entitles the member to hold the same seat for 
the day. 

339. In the legislatures of the United States, it is the general 
practice for each branch, soon after its organization, to elect a chap- 

1 J. of H. in. 748, 752, 754; Ann. of Cong, ume of Wheaton's Reports. In the former 
L 865. case, the action was brought against the 

2 J. of H. 15th Cong. 2d Sess. 135. speaker, and in the latter, against the ser- 
s The leading cases, in which the power of geant. Sir Francis Burdett, also, brought an 

a leoislative assembly to commit is estab- action against the sergeant-at-arms. 

listed, are, in England, that of Burdett v. Ab- * J. of H. 15th Cong. 2d Sess. 135. 

hott; reported in the fourteenth volume of ^ J. of H. 21st Cong. 1st Sess. 9 ; J. of H. 

East's Reports, and, in this country, that of 22d Cong. 2d Sess. 374. 

Anderson v. Jhinn, reported in the sixth toI- * Appendix. VII. 



Chap. II.] officers. 135 

lain, who attends at the commencement of each day's sitting, ana 
prays with the members, after the manner of the sect or denomina- 
tion to which he belongs. The two branches of congress, in pur- 
suance of a joint resolution, previously agreed upon for the purpose, 
elect each a chaplain of a ditTerent sect, who exchange with one 
another weekly. 

Section V. Printer. 

340. In modern times, the substitution of printing for reading in 
legislative assemblies has become so general, that it is usual to 
appoint some one to the office of printer to the assembly. In the 
house of commons, this appointment is usually left with the 
speaker. With us the choice is generally made by the assembly 
itself; either by means of an election, in the ordinary way, or by 
receiving proposals, and giving the appointment to the person, 
whose terms, on the whole, are the most advantageous. In assem- 
blies, where there is but little printing required, the usage sometimes 
is, to authorize the presiding officer or the clerk, on each particular 
occasion, to employ some one for the purpose. In whatever man- 
ner, however, a printer may be employed, he is, for the time being, 
the servant of the assembly ; and, as such, responsible for the cus- 
tody and safe-keeping of all papers and documents intrusted to his 
care, and bound to secrecy in all cases, where secrecy is enjoined, 
either expressly or by the nature of the subject. He is also entitled 
to the protection of the house in the discharge of his duty.^ The 
printing of congress is of such importance, and of such vast extent, 
that it is the subject of regulation by law. Each house employs 
its own printer. 

1 The powers and duties of this officer, in be libellous. Stockdale brought his action 
the house of commons, have within a few against the printers. The question primarily 
years given rise to the only controversy of involved was whether the house of commons 
much importance, touching parliamentary could authorize the publication of a libel, 
privilege, which has occurred in modern The house took the side of their printers, and 
times. The immediate occasion was the pub- passed several resolutions, asserting their own 
lication, in pursuance of an order of the house privileges, and their exclusive jurisdiction of 
of commons, by the Messrs. Hansard, printers all questions in which they were involved, 
of the house, of certain reports of the inspec- But the claim of privilege set up by the de- 
tors of prisons, in one of which, a book pub- fendant was disallowed by the court of King's 
lished by a bookseller named Stockdale, was Bench. — See Post, ^ 433. 
described in a manner which he conceived to 



13(5 LEGISLATIVE ASSEMBLIES. [pAKT 11. 



CHAPTER THIRD. 

OF THE PLACE AST) IMAXXER OF SITTING OF A LEGISLATIVE 

ASSEI\IBLT, AXD OF THE FORMAL PROCEEDIXGS THEREIN 

FOR THE TRANSACTION OF BUSLNESS. 

341. Under this head of the subject, it is proposed to give an 
explanation of several matters, \^-hich are essential to or connected 
with the orderly proceeding of a legislative assembly, in the trans- 
action of its business, namely ; of the place and manner of sitting ; 
of the continuation, and close, of the daily sitting ; of the personal 
deportment of the members during the sitting; of the manner of 
speaking ; of the rule of decision ; of the several forms of taking a 
question to ascertain the sense of the assembly; of the jom-nal or 
record of the proceedings ; of the printing of bills and other docu- 
ments ; and of the attendance and pay of the members. 

Section I. Place and JManner of Sitting. 

342. The rooms, necessary for the holding of a legislative assem- 
bly, consist of a principal hall or chamber, of a sufficient size for 
the ordinary sitting of the m.embers, Avhen occupied "^^ith business ; 
a number of smaller rooms adjoining, or in the saiue building wT.th, 
the principal hall, for the use of committees ; a room adjoining the 
principal chamber, for the use of the presiding officer ; one or more 
apartments for the accommodation of the recording officers, and 
the custody of their papers, journals, and records; one or more 
rooms for the sergeant-at-arms, suitable for the restraint of persons 
in his custody ; and one or more rooms to be used as ante-rooms, 
for persons in attendance by order of the assembly or otherwise. 
To these must be added a conference room, for occasional meetings 
of the two branches. 

343. The place where the assembly is to sit, being designated 
and appointed beforehand by law, and to be changed only by legal 
authority, no valid meeting can be held, or business transacted, at 
any other place. The place of meeting is in the possession of the 
assembly A;\^hile sitting, and of its appropriate officers v^-hen not iv. 
session. The assembly itself, as an aggregate body, and the per- 



Chap. III.] place and manner of sitting. 137 

sons of its members individually, while sitting, are sacred and 
inviolable, and cannot rightfully be interfered with, in any manner, 
by any other tribunal or authority whatever.^ This principle is so 
essential, that when violated, the government itself is attacked; 
and, if the violation is continued, the government is for the time 
overturned. The assembly, also, has the absolute control of the 
place of its sitting, and may exclude therefrom, at its pleasure, all 
strangers, that is, all persons who are not its members, even though 
they are members of a coordinate branch, or of some other depart- 
ment of government. It is hardly necessary to remark, that, the 
assembly may compel the observance of a proper decorum by all 
persons, whom it allows to be present at its proceedings. On the 
other hand, the mere place of sitting is no sanctuary ; and, when 
the assembly is not in session, is no more inviolable than any other 
private or public apartment.^ 

344. In theory, the internal proceedings of all deliberative bodies, 
legislative as well as others, are supposed to be conducted with 
closed doors, and in secret ; ^ the result only of their deliberations 
being made known, according to the subject-matter, or the persons 
interested, either by public proclamation, or by being announced 
to the parties, who are called in for the purpose ; and in courts of 
justice, juries, courts-martial, committees, and, indeed, in almost 
every variety of deliberative bodies, not legislative in their charac- 
ter, the practice conforms to the theory. In regard to legislative 
assemblies, though supposed, with certain exceptions, which will 
be mentioned, presently, to sit with closed doors, they are all now 
practically and to a greater or less extent open to the public. 

1 An instance of the invasion of a legisla- such a character as to entitle them to any 

tive assembly by another coordinate branch weight or authority. 

of the government occurred in the reign of - An attempt was made in 1815, by a mem- 

Charles I. and was among the last acts of that ber of the house of commons to make the 

infatuated and unfortunate sovereign. I al- chamber of the house a sort of sanctuary. 

lude to his going into the house of commons, Lord Cochrane, (then in the naval service, 

on the 4th of January, 1641, while the house afterwards Lord Dundonald,) a member, hav- 

was sitting, for the purpose of seizing certain ing been indicted and convicted for a ccnspir- 

membcrs, whom he had accused of high acy, was committed by the court of King's 

treason. This incident is probably familiar, Bench to prison. He escaped therefrom, and 

as it is described in the books of history. took refuge in the house, at a time when the 

Tliose who wish to see it more fully set forth, house was not sitting, although at a time 

■will find an account of it in Rushworth's His- when, by law, the sitting might have com- 

torical Collections, vol. IV. p. 474. This event menced. He was pursued by the marshal, 

also constitutes a sort of epoch in parliament- and arrested in the house, and taken back to 

ary law. Mr. Hatsell, in his collection of prison. The matter was investigated by a 

Precedents, omits every thing that occurred committee, who came to the conclusion, that 

in parliament from this time, until the resto- the privileges of the house had not been vio> 

ration, in 1660; the precedents of proceedings lated. 

durmg this period not being in his opinion of ^ Pemberton, 25. • 

12* 



138 LEGISLATIVE ASSEMBLIES. [PaET II. 

345. In both branches of parliament, the proceedings were con- 
ducted with closed doors from the earliest times, down to less than 
a hundred years ago ; though it is not improbable, that a few per- 
sons were al^vajs occasionally allowed to be present, by the con- 
nivance of the officers or members, till the number became quite 
considerable, and a sort of system was established, upon which 
admission to these bodies could be obtained by a limited number 
of persons ; but this always w^as and now is a matter of mere 
connivance, and not of right ; and the proceedings of these bodies 
are supposed, even at the present day, to be conducted in private ; 
accommodation is indeed provided in each for the reporters for the 
newspapers ; for a limited number of the members of the other 
house ; and for a very few other persons occasionally present ; but, 
aU this is a mere matter of indulgence ; and the house may not- 
withstanding be cleared of aU but members, at any moment, 
without debate or delay, and upon the demand of any single mem- 
ber. The exclusion of strangers from these bodies, though their 
presence is connived at by the officers and members, can at any 
time be enforced "without a previous order of the house, all that is 
necessary, for this purpose being that some member should take 
notice of their presence, and should communicate that fact to the 
house ; in the house of commons, the speaker is then obliged to 
order them to "udthdraw without putting a question. Strangers are 
present in either house only by sufferance, and upon no other 
ground has their presence been recognized.^ 

346. In this country, with the exceptions alluded to, aU the 
legislative assembhes are, in theory, and until a comparatively recent 
period, ^^ere in fact, closed against the public ; all the provincial 
legislatures probably sat with closed doors ; the proceedings of the 
old confederation congress were always in secret ; and it was not 
until the fotuth congress which commenced in the year 1795,2 that, 
after a long struggle, the doors of the United States senate, when 
sitting in a legislative or judicial capacity,^ were thrown open to 
the public. The public have since been admitted to the debates in 
aU our legislative bodies ; in some by the permission of the assem- 
blies themselves ; in others by constitutional right. In the ffi-st, 
unless the theoretical character of those bodies should be con- 
sidered as changed by long usage and the nature of our govern- 
ment and institutions, it would seem, that it could not be compe- 

1 May, 207. ^ The doors are still closed when the senate 

» J. of S. n. 33, 34. is sitting in its executive capacity. 



CnAP. III.] PLACE AND MANNER OF SITTING, 13S 

tent for a legislative assembly by any connivance, remissness, or 
voluntary act of its own, to change the basis of its original consti- 
tution. In these bodies, therefore, whatever rule or usage there 
may be to the contrary, their theoretical character is to sit with 
closed doors ; and it is in the power of any member, upon his mere 
demand, and without any previous order therefor, to make the 
practice coiTespond to the theory, or, in other words, to exclude 
strangers therefrom at his pleasure. 

347. This right of an individual member, without debate, and at 
pleasure, to exclude strangers from a legislative assembly,^ is essen- 
tial to its independent existence, and the due exercise of its func- 
tions, as such ; for otherwise, it would be out of the power of 
the members to make those communications to the assembly 
which they think ought to be confidential, and out of the power of 
the assembly itself to consider any thing in secret ; for if it was 
necessary to obtain a previous order of the assembly, before it 
could receive a communication, or discuss a subject, with closed 
doors, then a motion must be made and seconded for such order, 
and, a debate might ensue thereon, in public, whether a particular 
matter should be considered with closed doors, which, in most cases, 
would be equivalent to divulging the matter proposed to be kept secret. 

348. The legislative assemblies of the United States and of the 
several States owe both their existence and their character, in re- 
spect to the publicity of their proceedings, to the respective consti- 
tutions by which they are established, and are divisible into two 
principal classes. 

349. I. The constitution of the United States and those of the 
States of Maine, Massachusetts, Rhode Island, New Jersey, Vir- 
ginia, North Carolina, South Carolina, Georgia, Louisiana, Ken- 
tucky, contain no provisions at aU with regard to this subject. 
The legislative assemblies, therefore, estabhshed by these constitu- 
tions, according to the common parliamentary law above stated, are 
not public in their character. In these assemblies, consequently, it 
is the right of each individual member, in theory, at least, whenever 
he notices the presence of strangers, to have the assembly cleared 
of them, and brought back to its proper character of an assembly 
sitting with closed doors. Whatever might be thought, or might 
be the result, of an attempt on the part of individual members to 

1 The standing order of the house of com- to him, adds nothing to the right of the house 

mons, by which the sergeant is directed to take to proceed without the presence of strangers, 

into his custody all strangers that he may or to that of any member to exclude them 

see in the house, or that may be pointed out from the assembly. — May, 206, 207. 



140 LEGISLATIVE ASSEMBLIES. [PaRT II. 

assert this right, its application may doubtless be constitutionally 
regulated by each assembly for itself. The rule on this subject, 
adopted by the house of representatives of the United States, which 
is one of the bodies belonging to this class, is as follows : — " When- 
ever confidential communications are received from the president of 
the United States, the house shall be cleared of all persons, except 
the memibers, clerk, sergeant-at-arms, and door-keeper, and so con- 
tinue during the reading of such communications, and, (unless 
otherwdse directed by the house,) during all debates and proceedings 
to be had thereon. And when the speaker, or any other member, 
shall inform the house that he has communications to make which 
he conceives ought to be kept secret, the house shall, in hke man- 
ner, be cleared till the communication be made ; the house shall 
then determine whether the matter communicated reqmres secrecy 
or not, and take order accordingly." The rule on this subject, in 
the senate of the United States, is, besides enjoining secrecy as to 
confidential communications from the president, that, " On a mo- 
tion made and seconded to shut the doors of the senate, on the dis- 
cussion of any business which may, in the opinion of a member, 
require secrecy, the president shall direct the gallery to be cleared ; 
and, during the discussion of such motion, the doors shall remam 
shut." These rules, it will be perceived, do not cover the whole 
ground ; but the practice under them, seems to leave no doubt that 
the principle of the common parliamentary law, as above stated, is 
recognized in both houses of congress. In the senate, it has been 
decided, that the house is to be cleared, and the proceedings con- 
ducted in secret, on the annunciation of a message of a confidential 
character, from the other house,^ or at the request of any individual 
member ; ^ and in the house of representatives, messages from the 
senate are received in the same manner, and put upon the same 
footing,-^ with messages from the president of the United States.^ 
In both houses, therefore, when a confidential message is announced, 
either from one house to the other, or from the executive to either, 
the house is cleared to receive it in the manner mentioned in the 
rule ; if the message is in writing, marked confidential, or, fi'om an 
inspection of its contents or otherwise it appears to be so, either 
■whoUy or in part,^ the presiding officer announces the fact, and the 
house is thereupon immediately cleared, and the message, or such 

1 J. of S. m. 265; Same, V. 93. * J. of H. VH. 472, 474, 488; Same, Vm 

2 J. of S. V. 93. 273, 628. 

3 J. of H. V. 550; Same, VII. 474; Same, 5 j. of H. IL 831. 
vm. 289: Same, 471, 476, 522. 



GhAP. III.] PLACE AND MANNER OF SITTING. 141 

part thereof as is confidential, is at once communicated ; and, so, if 
the speaker,! or the chau-man of a committee,^ or any individual 
member,-^ informs the house that he has a communication to make 
to it which he thinks ought to be made in secret, and requests the 
house to be cleared for the purpose, the house is immediately- 
cleared accordingly. The injunction of secrecy thus imposed may 
be removed * at any time ; but the motion for this purpose is confi- 
dential in its nature, and can only be made with closed doors ; ^ 
though when made it is entitled to precedence over any motion to 
proceed to the business to which it is applicable.^ When any matter 
has once been introduced into the house in its ordinary capacity, a 
motion, that the further discussion thereof shall take place in secret, 
may be made, considered, and decided, in open session.'' Any 
invasion of the obligation of secrecy, imposed in the manner above 
described, or by any other vote of the house, as, for example, the 
printing of a bill,^ whether such invasion takes place by members,^ 
or others,!'^ is punishable as a contempt. The proceedings, which 
take place -with closed doors, are recorded in a separate journal, 
which partakes of the character of the transactions recorded in it, and 
cannot be adverted to, read in debate, or amended, at any distance 
of time, until the injunction of secrecy is removed.^! 

350. II. The second class of legislative assemblies consists of 
those, in reference to which it is provided, in the instrument of their 
creation, and in some appropriate phraseology, that aU their pro- 
ceedings and debates shall be open to Ihe pubHc, except upon occa- 
sions when secrecy is required. The States, in the constitutions of 
which this provision is inserted, are the following, namely : — New 
Hampshire, Vermont, Connecticut, New York, Pennsylvania, Dela- 
ware, Maryland, Florida, Alabama, Mississippi, Tennessee, Ohio, 
Indiana, Illinois, Michigan, Missouri, Arkansas, Iowa, Wisconsin, 
and California. In these States, therefore, the legislative assem- 
blies are open and public, by the instrument of their creation, and 
cannot proceed, upon any particular occasion, with closed doors, 
without an order to that effect. This may take place, in aU the 

1 J. of H. VII. 493; Same, 19th Cong. 1st 6 j. of H. VI. 382; Same, VII. 492. 

Sess. 98. « Ann. of Cong. 9th Cong. 2d Sess. 402, 403. 

2 J. of H. Vni. 273. f J. of H. VIII. 436, 444; Same, 32d Cong. 

3 J. of H. Vn. 474, 492 ; Same, VIII. 546, 2d Sess. 172. 

547, 616, 675; Same, 15th Cong. 2d Sess. 117; 8 j. of S. I. 384; Same, V. 367. 

Ann. of Cong. 5th Cong. 955 ; Ann. of Cong. » J. of S. III. 265. 

9th Cong. 1st Sess. 342; 2d Sess. 1261, 530. w J. of H. VIII. 279, 280, 446. 

* J. of S. v. 106, 149; J. of H. VI. 198, 199, " J. of H. V. 369, 550. 
597, 598 ; Same, VIII. 459 to 469, 493, 494, 495, 
496. 



i'42 LEGISLATIVE ASSEMBLIES. [PaRT IL 

States above mentioned, except Ohio, by a major vote ; in Ohio, 
the provision is, that "the proceedings of both houses shall be 
public, except in cases, which in the opinion of two thu'ds of those 
present reqinre secrecy." In these States, therefore, the legislative 
assemblies are not competent to make any rule with regard to pro- 
ceeding in secret, contrary to the constitutional provisions above 
mentioned. It is probable, however, that the reception of a confi- 
dential message from the executive would be considered, ^\dthout 
regard to its character, as a further reason for the adoption of an 
order to proceed upon it, at least, in the first instance, with closed 
doors. In several of the States enumerated in this paragraph, 
namely, Pennsylvania, Delaware, Maryland, Tennessee, Indiana, 
niinois, Missouri, Arkansas, the provisions as to publicity are ex- 
pressly extended to committees of the ^vhole. 

351. III. The constitution of Texas is the only one, which pro- 
vides simply that " The doors of each house shall be kept open." 
Li this State, therefore, the legislative assemblies cannot, on any 
occasion, or for any purpose, proceed wdth closed doors, in vu-tue of 
any rule or order to that effect. 

352. Li the absence of any rule on the subject every member 
occupies any vacant seat he pleases, and abandons his right to it, 
when he leaves the seat. In the house of lords, there is a standing 
order, assigning the places for the sitting of members ; but this order 
is only enforced occasionally ; in general, the peers, with the excep- 
tion of the bishops, who always sit together in a particular part of 
the house, occupy different sides of it, according to the parties to 
which they belong. In the house of commons, no places are par- 
ticularly allotted to members ; but it is understood, that members 
who have received the thanks of the house in thek places, (which 
often happens to officers of the army or navy who are members,) 
are entitled, by courtesy, to keep the same places during that par- 
liament ; ^ and it is not uncommon for old members, who are con- 
stantly in the habit of attending in one place, to be allowed to 
occupy it without disturbance. With these exceptions, the only 
mode of securing a particular seat is by being present at prayers. 
The practice is, for the two parties, into which the house is usually 
divided, to arrange themselves on opposite sides, the ministers and 
their friends on the right, and the opposition on the left of the chair ; 
the front bench on the right hand, which is called the treasury or 
privy councillors' bench, being appropriated to the members of the 

1 HatseU, II. 93, 94. 



Chap. III.] place and manner of sitting. 143 

administration ; and the front bench on the opposite side to the 
leading members of the opposition who have served in high offices 
of state.^ 

353. In the legislative assemblies of the United States, besides 
the above, three modes of assigning the seats among the members 
appear to be commonly in use, namely : the seats are either deter- 
mined by lot ; or according to seniority of age, or membership ; or 
are taken possession of by the members individually ; but in what- 
ever mode they may be assigned or appropriated, in the first 
instance, they are permanent during the session. In ^he house of 
representatives of the United States, the members, having taken 
what seats they please, in the first instance, at the commencement 
of the first session of each congress, abandon them in pursuance 
of an order to that effect, and draw lots for the right of choice, and 
make their selection accordingly.^ If a dispute arises between two 
members, as to their respective rights to a particular seat, they may 
refer the matter to the house.-^ In the senate of Massachu- 
setts, which always consists of a certain fixed number of 
members, the seats are assigned by a committee, usually accord- 
ing to seniority of legislative service. In the house of representa- 
tives of the same State, which is a large body, but of uncertain 
size, the seats themselves, and not merely the right of selection, 
are assigned by lot a day or two previous to the commencement of 
each session, under the direction of the sergeant-at-arms. 

354. The mace, which is the emblem of the authority of a legis- 
lative assembly, is an ornamented silver club of a convenient size. 
The one belonging to the house of commons was originally 

1 The rooms in which tlie two houses of tlie fills the area, so that those members who ad- 
British parliament sit, in the new buildings dress the house from the first row of benches 
for their use at Westminster, are probably not on either side, make use of it for their papers, 
different in shape, size, or internal arrange- At the end behind the speaker's chair there is 
ments, from the old apartments which they a small gallery for the use of reporters, and at 
occupied, when Mr. Hatsell's treatise was com- the opposite end, over the bar, is a larger one 
piled, and to which allusion is frequently made for the use of persons introduced by the speak- 
in that work. The chamber, in which the er, or members. At each side there is a gal- 
house of commons sits, at the present time, is- lery extend ingrfrom one end to the other, and 
an oblong square, extending from one side of containing a single row of seats only, for the 
the building to the other, with the bar at one use of members. Behind the reporters' gal- 
end, and the speaker's chair towards and near ler\', there is a seat for ladies, separated from 
the other, and with fixed rows of benches, or the house by the partition wall at that end, 
seats with backs, on each side. In the area which is here partly made of screen-work of 
between and directly in front of the speaker's polisl\ed brass, through which the occupants 
ehair, there is a very long and wide table, at can see the interior of the house and heat 
the upper end of which sit the clerk and his the debates, without themselves being seei 
assistant, and the lower end of which is occu- These galleries are approached from withoBt. 
pied with the mace resting upon its frame. " J. of H. 29th Cong. 1st Sess. 55. 
The table of the house is so wide that it nearly * J. of H. 27th Cong. 2d Sess. 27, 28. 



144 LEGISLATIVE ASSEMBLIES. [PaRT IL 

made for the use of Cherries I. When parliament is prorogued or 
dissolved, it is kept at the jewel of&ce. On the assembling of 
parliament, the mace is brought into the house by the sergeant-at- 
arms, and placed under the table of the house, where it remains 
until a speaker is chosen, and then it is placed upon the table, 
where it is always put while the house is sitting and the speaker is 
in the chair. During the sitting of parliament, and adjournments 
thereof, (for however long a time,) the speaker has the keeping of 
the mace, which is always carried before him, when he enters the 
house or leaves it ; and also on all public occasions. The mace 
is then borne by the sergeant-at-arms of the house on his shoulder. 
When the mace lies upon the table of the house, the assembly is a 
house ; when it is under the table, the house is in committee of the 
whole ; when the mace is out of the house, (as, w^hen the speaker 
omits to attend the house from illness or other cause) nothing can 
be done but to adjom-n. When the mace is not on the table, but 
borne by the sergeant on his shoulder in the house, (as, when 
messengers from the house of lords are introduced, or when a wit- 
ness is examined at the bar of the house, or a person accused, or an 
oifender is brought to the bar) no m.ember, except the speaker, can 
say a word, or make a motion, or indicate a question to be put to 
a vvdtness, but the speaker alone manages. This implement is in 
use for the same or analogous purposes in congress, and probably 
in the legislative assemblies of some of the States, but is not essen- 
tial to the regularity of proceeding.^ 

355. An essential part of the arrangements for the transaction of 
business is the rail or bar, by which the members are separated 
from persons attending the assembly, not to witness the proceed- 
ings, but to participate in them, either as witnesses, parties, coun- 
sel, or messengers ; but which is also made movable, in order to 
admit the ingress and egress of members. In the house of lords, 
the bar is a rail extending from one side to the other of the room, 
and dividing it into two ujiiequai portions. In the house of com- 
mons and in our large assemblies, the bar is nothing more than a 
rail extending, across the passage v^^ay, into the area T\"ithin the 
seats, and does not in fact separate the members from persons 
attending. The " bar of the house " has, in this country, become 
more a metaphor than a reality ; the expression " placed at the bar," 
denoting that a person is on trial before the assembly ; and to be 

1 The mace must not be confounded with uses to attract the attention of the assembly 
the small hammer of -n-ood, ivory, or metal, or for the preservation of ordei;. 
which the speaker or other presiding ofScer 



Chap. III.] place and manner of sitting. 145 

'' heard at the bar " meaning only that some person, not a member, 
is allowed to address the assembly. It is essential, however, to the 
orderly conducting of the business of a legislative assembly, that 
the members should, in fact, be separated from other persons 
attending, or should have the means of such separation at com- 
mand. Where there is a space between the bar, and the 
walls of the room in w^hich the assembly meets, those members 
only are said to be present in the assembly, and are recognized by 
the presiding officer, as members, who are within the bar ; or where 
there is no separation by means of an actual rail or bar, within the 
exterior limits of the seats appropriated to members. In Eng- 
land, members who have reports to make from committees, or bills 
or petitions to present, or messages to deliver from the sovereign, 
go down from their places in the house for the purpose to the bar, 
and are there called to by the speaker. According to our practice, 
the only papers delivered at the bar accompany the messages 
which are there always received from the executive, and from the 
other branch. 



Section II — Opening, Continuation, and Close, of the Daily 

Sitting. 

356. A legislative assembly, having once met, either with or 
without a quorum, on the day appointed for its meeting, continues 
to meet afterwards regularly, and as a matter of course, every leg- 
islative day, that is to say, every day, except Sundays and such 
other days, (as, for example, in England, Christmas and Good- 
Friday) as, by the law and usage of each particular State, are 
accounted as holidays.^ But though these days are not legisla- 
tive, on which an assembly meets, as of course, or on which it 
would meet unless otherwise ordered, they may nevertheless be 
made legislative days by the assembly itself. Thus, if the assembly 
sits over from the day preceding, or appoints them beforehand for a 
meeting, they then become legislative days.^ In the eastern, and, 
probably in some of the other States, Sunday is the only day, 
which is not an ordinary legislative day, and on which a legislative 
assembly does not meet, as a matter of course. 

357. Sundays, and the other days above mentioned, being legis- 
lative days or not according to the determination of the assembly 

» Whitelocke, L 219. 2 J, of H. 24th Cong. 1st Sess. 577; Cong. 

Globe, VL 371; Cong. Globe, VIL 244. 

13 



146 LEGISLATIVE ASSEMBLIES. [PaRT II. 

they are always reckoned as a part, or so many days of, the ses- 
sion ; 1 thus, for example, the members draw their daUy pay for 
these as much as for any other days ; and Avhen it is provided by 
oonstitution, that neither house shall adjourn for more than a given 
number of days, without the consent of the other; that the executive 
shall return a bill within a certain number of days ; these days are 
included in the computation ; but where the rules of an assembly 
require that certain motions, as, for example, the motion for recon- 
sideration, shaU be made A^dthin a fixed number of days, Sundays 
and the other days above mentioned are included or not in the 
computation, according as the assembly sits or not on those days. 

358. When certain days in the week are set apart by rule for the 
consideration of a certain class of business, that kind of business is 
entitled to the preference on those days. But it does not thereby 
lose its place on the general docket, and may be considered on 
other days.- 

359. Where the assembly has a clock which has received its 
sanction, and is used for the purpose of indicating the time, the 
presiding officer ordinarily goes by it in conducting the business of 
the house.3 

360. It not unfrequently happens, that the daily sitting of the 
assembly on one day is prolonged into the next day, in the course of 
business, and without any previous order therefor. In this case the 
transition of time is to be noted on the journal, as near as may be, 
and a new date inserted, and, at the end of the day's sitting, the 
true day to which the house stands adjourned is put down.'^ It is 
important, on many occasions, to know the precise day on which 
particular proceedings take place. Where the sitting of one day 
is prolonged, in this manner, into the next, it may be extended 
beyond the time assigned for reading the journal and commencing 
the regular proceedings of the last-mentioned day ; ° but business 
which is in order only on the day when the sitting commences, and 
is then properly taken up for consideration, ceases to be in order, 
and goes over to the next day on "v^^hieh such business is in order, 
by the natural expiration of the day on which it is taken up.^ 

1 J. of H. 31st Cong. 1st Sess. 226, 227; twelve o'clock on [Saturday! morning;" at 
Cong. Globe, XIII. 70; Cong. Globe, XVIII. the end of the day's sitting, the entry is: — 
1029. " And then the house, having continued to 

2 J. of H. 19th Cong. 1st Sess. 795. sit till after three o'clock on [Saturday] 
^ Cong. Globe, XV. 1223. morning, adjourned tiU this day." 

* In the house of commons, the entry on the ^ Cong. Globe, VIII. 288. 

journal, when the change of time takes place, ^ j, of H. 31st Cong. 1st Sess. 228, 227 

followed by a new date, is thus : — " and the 577. 
house having continued to sit imtil after 



Chap. III.] place and manner of sitting. 147 

361. Where the number necessary to form a quorum of a legis- 
lative assembly is fixed, without the presence of whom no business 
can be entered upon or proceeded with, the inability extends and 
applies to questions of adjournment as well as to other matters of 
business ; and, if a quorum is not present, no question of adjourn- 
ment can properly be proposed to the assembly itself for its decis- 
ion, for it is not then in a condition to decide any question. The 
only thing that can be done, in such an emergency, is, for the pre- 
siding officer, or the clerk, if the former is not present, to declare 
without putting the question thereupon, that the assembly stands 
adjourned until the next sitting day. This is as effectual, to con- 
tinue the session, as an adjournment on question, and the assembly 
is as regularly appointed to meet on the next sitting day as it 
would be by its own order. This rule, which is derived from the 
practice of the house of commons, only applies to those assemblies, 
which like that house have a fixed quorum, but no power of dis- 
pensing with the want of one, or of proceeding upon any thing in 
its absence. The States, in which the legislative assemblies are of 
this character, and to which consequently the rule applies, are those 
of New Hampshire, Vermont, Massachusetts, New York, and North 
Carolina. 

362. In these assemblies, therefore, the chair is not generally to 
be taken by the presiding officer, and the assembly called to order, 
until a quorum is present. If no time has been fixed upon before- 
hand for the meeting, the presiding officer should wait a rea- 
sonable time ; and, then, if a quorum does not appear to be present, 
he should take the chair for the purpose, and declare the assembly 
adjourned until the next sitting day, without a question.^ If the 
presiding officer should not happen to be present, the declaration 
should be made by the clerk. In this case, the adjournment does 
not take place in vntue of any act of the members assembled, but 
in virtue of the principle, that the assembly, when once constituted, 
continues as of course to meet every legislative day, until dis- 
solved. If an hour has been fixed for the meeting, and at the 
expiration of that hour, a sufficient number is not present, the 
assembly is adjourned until the next sitting day, in the manner 
just stated. 

363. But in all the legislative assemblies of this country, except 
those in the States above enumerated, the rule is different. In the 
constitution of the United States, and in those of the other States 

1 HatseU, II. 173. 



148 LEGISLATIVE ASSEMBLIES. [PaET IL 

not above enumerated, vhile the quorum of each is thereby fixed, 
it is expressly proAdded, that " a less number may adjoui-n from day 
to day." In these assemblies, therefore, the chair may be taken 
precisely at the moment fixed for the meeting of the assembly, 
vidthout waiting for the presence of a quorum ; and the assembly, 
then, hov^ever few there may be present, is competent to adjourn 
itself on question, to the next sitting day. The assembly, being 
thus competent to adjourn itself, or not to adjourn, as the members 
present may think proper, the authority of the presiding officer to 
declare an adjournment without a question is, of course, super- 
seded. The rule of the house of representatives of the United 
States provides, that the speaker shall take the chair, precisely at 
the hour to which the house stands adjom-ned, and that body by 
the constitution has authority to act upon the question of adjourn- 
ment mthout a quorum. 

364. It appears to have been the custom of the house of com- 
mons, t^^o centuries ago, to meet at a fixed hour, generally at eight 
o'clock in the morning; to proceed to business of importance at 
nine or ten ; and to adjourn for the day, by t^\^elve, or soon after. 
This practice left the afternoons for the meetings of committees, 
especially what were called the grand committees, which usually 
met in the house. But within the last century, the practice of sit- 
ting in the fore part of the day has gradually given place to the 
opposite custom of sitting in the afternoon and evening ; and, with 
the latter practice, that of fixing the time of meeting by a special 
order has also been discontinued. The sittings of the commons do 
not now commence until foiu o'clock in the afternoon. 

365. This change in the time of sitting, from the morning to the 
evening, — and the debates frequently hold on till after midnight, — 
is owing in part to the composition of the assembly, and in part to 
a change in the usages of business generally. The ministers, ^"ho 
are al^vays members, are occupied in the morning in their several 
offices ; the law^-officers of the crown, M'ho are usually members, 
and other members, who are also of the legal profession, are busied 
in the courts ; persons engaged in commerce are employed in their 
own affaus during the early part of the day ; and the committees 
of the house, besides the necessity of having some time allowed 
them for their sittings, are also under the necessity of examining 
great numbers of v\dtnesses, who cannot conveniently attend at 
any other time than during the day.^ 

1 Dumont, 219 



Chap. III.] place and manner of sitting. 149 

366. The origin of the present jDractice of the house of com- 
mons, with regard to the commencement of the daily sitting, being 
somewhat curious, as well as instructive, may very properly be 
mentioned. The statutes of 30th Charles II. and 13th William 
III. having provided that members returned to fill vacancies, occur- 
ring after the commencement of the session, should take the oaths 
in the house, between the hours of nine in the morning and four in 
the afternoon, the officers of the house have considered these stat- 
utes as imposing upon them the duty of attending in the house, 
and they are in attendance accordingly, between the hours named, 
for the purpose of the oaths being administered to any new mem- 
bers that may present themselves. K therefore any member is 
introduced between those hours, for the purpose of being sworn, 
the speaker immediately takes the chair, and the member is sworn, 
whether a quorum is present or not ; inasmuch as it is considered, 
that a rule, laid down by the house as a regulation for itself, (and 
the number necessary to form a quorum is only fixed by a declara- 
tion of the house) cannot supersede the directions of an act of par- 
liament. When the chair is thus taken for the purpose of qualify- 
ing a member, without a quorum being present, the speaker 
continues to sit in the chair until four o'clock, beyond which time 
no new member can be introduced ; and, then, the requisite number 
not appearing, he adjourns the house without a question ; if forty 
members should then be present, the business proceeds. From the 
requirements of the statutes alluded to, and the obligation which 
they are considered as imposing upon the officers of the house, to 
be in attendance from nine to four, the time of assembling seems 
to have been fixed by law at those hours, or at any intermediate 
time between those hours, and by usage at the latest of the two, 
namely, at four o'clock. 

367. The time fixed or agreed upon for the meeting of any 
assembly, consisting of a considerable number of persons, cannot 
ordinarily be considered as a single moment or point, without gi'eat 
and manifest incojivenience ; and, therefore, unless it is otherwise 
expressly established, it would seem, that the time fixed for a meet- 
ing ought to cover a certain period of greater or less duration ; 
which, in practice, is usually from the hour named until the next. 
Thus, the house of commons assembles at any point of time, 
between nine and four o'clock ; a meeting called for a certain hour 
assembles at any time within the hour ; and, consequently, it should 
seem, that where a particular hour is fixed for the assembling of a 

13 



150 liEGISLATIVE ASSEMBLIES. [PaRT 11 

legislative body, it should not be adjourned for want of a quorum, 
until the expiration of the hour named.^ 

368. It is the practice, in this country, by a standing order, 
adopted at the beginning of each session, to fix an hour for com- 
mencing the daily sitting; so, that, when an adjom-nment takes 
place, simply, whether by a vote or otherwise, the assembly stands 
adjourned, as of course, until that horn* on the next sitting day. 
When the hour of assembling is not thus fixed, the time should be 
agreed upon before the adjoui-nment each day; otherwise the 
assembly would stand adjom-ned indefinitely, or mitil the next sit- 
ting day merely. 

369. It has aheady been stated, that the chair is not to be taken 
for the purpose of proceeding with busuaess, or for any other pur- 
pose than that of adjourning, if a less nmnber is competent to do 
so, until a quorum is present ; so, if the number of members pres- 
ent, at any time dming the sitting, falls below the requisite number, 
bu.siness is at once suspended. If, therefore, it appears on a division, 
or if notice is taken by any member, that a quorum is not present, 
it then becomes the immediate duty ^ of the presiding ojSicer to 
count the members ; and if they do not amount to a quorum, 
to suspend all further proceedings until the requisite number 
comes in, or, to adjourn the assembly without a question, until 
the next sitting day. If the assembly is one, which is compe- 
tent to adjourn itself, the presiding officer has no authority to 
declare an adjom-nment, but must wait for a motion for that pur- 
pose. In comiting for this purpose, the presiding officer, if he is a 
member, reckons himself, and includes all members who come in 
after the counting has commenced.^ When an adjournment takes 
place in the house of commons, for want of a quorum, the house 
is said to be counted out. A quprum, having once been present, 
is presumed to continue, although not of the same individuals, until 
the contrary appears in the manner already stated; and, hence, 
if business is proceeded in, after the number of members present 
is in fact reduced below a quorum, the validity of the votes agreed 
to before notice is taken, and the assembly counted, cannot be 
questioned.^ 

1 See Blanchard v. Walker, Cusliing's Ee- take notice of the deficiency as well as any 
ports, IV. 455. other member. See the Pari. Eeg. (2) XLVII. 

2 The presiding officer usually remains pas- 747. 

sive, unless the want of a quonim appears, ^ Hatsell, II. 176. 

or is suggested by a member ; though there * It has been said to be the practice, in the 

seems to be no good reason why he should not house of commons, for the government or ad- 



Chap. III.] place and manj^er of sitting. 151 

370. When, upon a division, it appears, that a quorum is not 
present, the question, upon which such division occurs, ordinarily 
remains undecided ; but, ^vhere the aggregate of the votes on each 
side, with the tellers and speaker, make up a quorum, the question 
is decided. Thus, where upon a division in the house of commons, 
it appeared, that there were twenty-seven ayes and eight noes, 
which, with the four tellers, who are reckoned as voting, and the 
speaker, made up the number of forty, which is the number neces- 
sary to constitute a quorum of the house of commons, the question 
pending was held to be thereby decided.^ 

371^ The practice, with us, in regard to the opening of the daily 
sitting, seems to be somewhat different from that in parliament. 
In the commons, prayers are read before the speaker takes the chair, 
and the chair is not taken, except for a particular purpose, until 
forty members are present. With us the chair is to be taken punc- 
tually at the hour to which the assembly stands adjourned, if a quo- 
rum is then present, or if a number less has the right of adjourn- 
ment ; otherwise the presiding officer waits until the requisite num- 
ber is present ; prayers are then said ; the journal of the day 
preceding is read ; and the business of the day proceeds. In the 
house of representatives of the United States, the course is that the 
chan is taken punctually at the hour ; the members are immediately 
called to order ; the chaplain performs the duty of his office ; if a 
quorum is not present, such proceedings take place, in pursuance of 
the rules of the house, as may be proper to compel the attendance 
of absent members; if a quorum is present, the journal of the pre- 
ceding day is read ; and then the business of the day proceeds 
according to the established order. When the business has been 
completed, or the usual time of sitting has been exhausted, or the 
members are weary of proceeding, or wash to put an end for the 
time to a particular matter of business, an adjournment takes place. 

ministration, that is, the ministers, to take on some other day; which, as every day is 
measures to prevent tlie formation of a house, usually appropriated in advance, for a consid- 
on a particular day, or to reduce the number erable period, is difficult, if not impossible, 
present below a quorum, on particular occa- This practice is not likely to occur in the two 
sions, with a view to put off or suppress a dis- houses of congress, or in any of the legislative 
cussion, which they wish to get rid of, with- assemblies of this countrj', in which a less 
out putting it down by a direct vote. The mmiber than a quorum has the right of ad- 
business assigned beforehand for the day, on journment. 

which the sitting is thus prevented or termi- ^ Pari. Reg. (2) XII. 461 ; Comm. Jour 

Dated, falls to the ground, and must be renewed XXXIX. 845. 



152 LEGISLATIVE ASSEMBLIES. [PaRT II. 



Sectiojt III. Personal Deportmext of the Members, whilst 
THE Assembly is sitting. 

372. In parliament, the presiding officers and clerks of both 
branches, like the judges and other officers of courts of justice, 
appear in gowns and wigs, and sit uncovered. The members, ex- 
cept on occasions of state, appear in their ordinary costume,^ and 
also sit covered. If a member comes in or goes out, or moves from 
one part of the chamber to another, while the house is sitting, he 
takes off his hat, and bows in passing the speaker, who bows in 
return. In our assemblies, the members and officers wear their 
ordinary costume, and, wth scarcely an exception, sit uncovered. 
It is usual, also, to observe the same ceremonial in going out, com- 
ing in, and moving about the house, as is practised in the house of 
commons. 

373. When the presiding officer has taken the chau-, every mem- 
ber is to be seated in his place, and to give his attention to what- 
ever business may be presented, without departing unnecessarily 
from the house, mitU the sitting for the day is at an end ; and while 
business is proceeding, as, for example, when the presiding officer 
or clerk is reading a bill or other paper, — or a member is speaking, 
— • or the members are engaged in voting, — it is the especial duty 
of every member to abstain from aU whispermg, speaking, moving 
about, or other conduct "which may be to the annoyance and dis- 
turbance of the house, or of any member. For the purpose of 
obtaining and securing the observance of order and decorum among 
the members of a legislative assembly, v^^hilst they are sitting as 
such, the presiding officer is invested with authority to suspend aU 
ordinary business, until order is restored ; - and, if order cannot be 
obtained in any other "^^ay, to caU men by their names{' which is 
equivalent to a complaint against them."^ Besides these rules, 
which a,re general, and apply to aU assemblies, every one has regu- 
lations of its o"«m, which are specially adapted to its peculiar 
circumstances. The rules relating to the deportment of members 
are founded in the principle of the equality of then rights and 
duties. Every member has an equal right with every other, to 

1 As an exception to this rule, Mr. HatseU "- Cong. Globe, X^^^. 1007 ; Cong. Globe, 

is catefiil to inform his reader, that it is con- XXL 1749, 1776; Cong. Globe, XXL 1923. 

trars' to usage for newly elected members, on ^ Cong. Globe, XXI. 1776, 1923. 

being introduced to take the oaths, to appear * May, 261; Post, 1506. 
iu boots.. HatseU, H. 85. 



Chap. III.] place and manner op sitting. 153 

bring forward and advocate the adoption of whatever measures he 
may think conducive to the public interest ; and, consequently, 
every one must exercise his individual right in such a manner, as to 
admit of a similar exercise on the part of others. 



Section IV. Manner of Speaking. 

374. Whenever a member desires to make any communication 
to the assembly, — as to present a petition, make a report, propose 
a motion, or participate in a debate, — he rises in his place, and, 
standing uncovered, addresses himself to the presiding oflicer by 
his title, sayir.g Mr. Speaker, or Mr. President, or Mr. Chairman, as 
the case may be ; the member then pauses for a moment, until the 
presiding officer calls to him by his name or designates him by his 
locality, or, in some other way, recognizes him as addressing the 
chair; this being done (but not before) the member proceeds. 

375. When two or more members rise at or about the same time, 
it is sometimes difficult to determine which of them shall be heard. 
In the lords, the authority of the presiding officer being limited, — 
the right of a peer to speak depends solely upon the will of the 
house; and when two rise at the same time, unless one or the other 
immediately gives way, the house calls upon one of them by 
name to speak ; but, if each is supported by a party, there is no 
alternative but to decide the matter by a question and a vote of the 
house thereupon. 

376. In the house of commons, the speaker caUs upon the mem- 
ber, who was first observed by him. But the right of a member to 
be heard, in preference to others, depends, in reality, upon the fact 
of his having been the first to rise, and not upon his being first in the 
speaker's eye. If the speaker should happen to overlook the mem- 
ber, who in fact was the first to rise, it is not unusual for members 
to call out the name of the member, who, in their opinion, is enti- 
tled to be heard ; and when the general voice of the house appears 
to give him the preference, the member called upon by the speaker 
usually gives way. If the dispute should not be settled in this 
manner, a motion may be made and a question put, that a particu- 
lar member be heard. 

377. In the legislative assembHes of this country, it is for the 
most part provided by a rule, as, for example, in the house of rep- 
resentatives in congress, that " when two or more members happen 



154 LEGISLATIVE ASSEMBLIES. [PaRT II 

to rise at once, the speaker shall name the member who is first to' 
speak." Where there is no rule established, of this kind, the par- 
liamentary rule just explained applies. To the rule, that the mem- 
ber first up is to speak in preference to others, there are several 
exceptions, Avhich will be explained in another part of this work. 

378. In dehberative assemblies of any considerable size, it is the 
rule, that members should speak standing in their places ; ^ but this 
rule admits of an exception in the case of old, infirm, or sick mem- 
bers, who, by the indulgence of the assembly, are allowed to speak 
sitting,^ or in more convenient places than their accustomed seats.^ 
The advantages ascribed to the former position are, that the mem- 
ber spealdng has his body and limbs at better command ; his voice 
is more free and varied ; he is in a situation to exercise a greater 
influence over his hearers ; and he better perceives the impression 
produced by his speech. The close of his discourse is also more 
distinctly marked by the movement of taking his seat, than by 
merely ceasing to speak.* This rule is more appHcable to a large 
than a small assembly, and is not necessary to be observed in com- 
mittees and similar bodies consisting of but fe"w members. 

379. In the French and some other legislative assemblies, on the 
continent of Europe, a little platform or desk, called the tribune, is 
provided, from which members are required to speak, when they 
address the assembly.^ This practice, though attended or supposed 
to be with some advantages, has never been adopted in England 
or here, or any practice analogous to it, except that in the house of 
representatives of the United States and probably in other legisla- 
tive assemblies, the members are allowed, if they desire it, to 
address the house from the clerk's desk, or from a place near 
the speaker's chair in preference to their own seats. 

380. It is a general rule, also, in speaking, that the member 
speaking should address himself to the presiding officer, and not to 
the assembly in general. This is the usage of the house of com- 
mons, from whence it has been introduced into the legislative 
assembUes of the United States. The advantages of this practice, 
which is admitted to be exceedingly proper in a numerous assem- 
bly, are much more easily felt than analyzed and described.*^ In 

1 May, 240. Journals, LXIV. 167; Hans. (3) LXVII. 658, 

* The motion for this purpose, -whether gen- Same, LXXVI. 542. 

eral, or for a particular occasion, may be made * Dumont, 136. 

by the member himself or another. See Han- * x^g use of the tribune is now dispensed 

sard's Debates, (1st Series,) V. 793; Same, with in France. 

Vn. 617. « Dumont, 164. 
" « Hatsell's Precedents, H. 104, 107; Lord 



Chap. III.] formalities of proceeding. 155 

the house of lords, this rule does not prevail. Members, in speak- 
ing, address thefnselves directly to the house. 

381. A third rule, not less essential in point of decorum, is, that, 
in speaking, members are not to be spoken of or alluded to by their 
names, but to be respectfully described in some other manner, or 
by some circumlocution, as, for example, the member on the right 
or left, — the gentleman who spoke last, — the member from such a 
place. The purpose of this rule is, to guard as much as possible 
against the excitement of aU personal feeUng, either of favor or of 
hostihty, by separating, as it were, the political from the personal 
character of each member, and considering the former only in the 
discussion.! 



Section V. Op the several Forms of taking the Question, in 
order to ascertain the Sense of a Legislative Assembly. 

382. In order to ascertain the sense of the assembly, in reference 
to any subject, that subject must be propounded to it, in the form 
of a question, to be answered simply in, the affirmative or negative, 
by each individual member. The proceeding for this purpose, 
which is called taking the question, varies considerably as to its 
form in different assemblies. It wiU be convenient to describe, in 
the first place, the forms which are used in the two houses of par- 
liament, and which to a greater or less extent prevail with us, and 
then those which are peculiar to the United States.^ 

383. There is one mode, however, of ascertaining the sense of 
an assembly, which is common to all, and which may therefore 
properly be first stated. The opinion of an assembly being suffi- 
ciently known, in many cases, by irregular and informal manifesta- 
tions of it, and being safely taken for granted in many others, in 
which it cannot reasonably be supposed, that there is any ground 
for a difference of opinion, it has not been found necessary, in prac- 
tice, to propose and take a formal question, in all cases. This 
mode of proceeding is, perhaps oftenest, though not exclusively, 
adopted, in reference to those merely formal matters, in which it is 
not deemed necessary that there should even be a motion made 
and when judiciously and discreetly practised by the presiding 

1 Dumont, 166. lative assembly is conducted. They are 

* The diflerent methods of taking the ques- mentioned, again, in the sixth part, in con- 

tion are here described, as a part of the nection with the rules for their practical appli- 

mechanism by which the business of a legis- cation. 



156 LEGISLATIVE ASSEMBLIES. [PaUT IL 

officer, for it depends entirely on him, it is no doubt productive of 
great convenience to the assembly. 

384. When this mode is adopted, the question is not put for 
those who are on the one side or on the other to declare them- 
selves, but simply, is it the pleasure of the assembly, that such or 
such a thing be done ? or " If there is no objection, it -wiB. be so 
ordered," and if no objection is made or dissent offered, then the 
thing is considered as ordered or voted, vdthout putting the ques- 
tion in any other form. For example, when a message is an- 
nounced, in the house of commons, it is not usual for a motion to 
be made and a question put in a formal manner, for admitting the 
messengers ; but the speaker simply says at once, Is it the pleasure 
of the house, that the messengers be called in ? and if no member 
objects, they are immediately introduced AAdthout further question. 
If, in any such case, objection should be made, even by a single 
member, the question should either be put in the usual form ; or, 
perhaps it might be more proper, in some cases, where no motion 
had in fact been made, for the presiding officer to require one to be 
regularly made and seconded, before putting the question. 

385. In parliament, a question not informally decided is always 
taken in the first instance by the voices. The following is the 
method practised in the house of commons. The question being 
stated hj the speaker, he first puts it in the affimative, namely : — 
As mamj as are of opinion that, — repeating the words of the ques- 
tion, — say aye ; and immediately aU the members who are of that 
opinion answer T\T.th one voice, aye ; the speaker then puts the 
question negatively : — As many as are of a different opinion, say no ; 
and, thereupon, aU the members who are of that opinion answer 
no. The speaker judges by his ear which side has " the more 
voices," and decides accordingly that the ayes have it, or the noes 
have it, as the case may be. 

386. K the speaker is doubtful about the majority of the voices, 
he may put the question a second or even a third time in the same 
manner ; but, if, having decided according to his judgment, any 
member rises and declares, that he believes the ayes or noes (which- 
ever it may be) have it, contrary to the speaker's opinion, then the 
speaker directs the house to divide, in order that the number on 
either side may be counted. The decision of the speaker must be 
questioned immediately, so as to make a part of the same pro- 
ceeding ; for, if any new motion is made,^ or if a member, who was 

1 Scobell, 24. 



Chap. III.] formalities of proceeding. 157 

not in the house, when the question was taken, comes into it/ after 
the declaration is made, and before it is questioned, it is then too 
late to contradict the speaker and divide the house. After a divis- 
ion has been called for, it must go on, unless all agree to waive it 
before any go out. 

387. The speaker's decision cannot be questioned, where the 
voices are given only on one side, and the speaker declares on that 
side. A motion being declared by the speaker to be negatived, 
some voices called out that " the ayes have it " after the speaker 
had decided, but the speaker said they were too late, for not 
one " aye " had been uttered \vhen he put the question.^ The 
reason is, that the purpose of dividing is to ascertain what number 
of members gave their voices on the one side and on the other ; 
and, consequently, if voices are given only on one side, and the 
speaker declares the vote carried on that side, no division can take 
place, for there is in fact only one side. 

388. Before proceeding to a division, and, indeed, before a ques- 
tion is put, in the first instance, upon which it is known that a 
division will be called for, the speaker dii'ects the sergeant-at-arms 
to clear the house of strangers and to shut the doors. He then 
appoints two members, on each side, as tellers,'^ to count the house ; 
but, if, on naming the tellers, it appears that there is but one mem- 
ber on one side of the question, and, consequently, that two tellers 
cannot be appointed on that side, the division cannot go on, and 
the speaker declares on the other side.* 

389. The purpose of a division is not so much to enable mem- 
bers to vote, as it is to ascertain how they have already declared 
themselves by their voices ; and, therefore, if a member, when the 
voices are given, declares himself with the ayes or the noes, he 
cannot be permitted, on the division, to vote with the other side ; 
but if he does so, and notice is taken of the fact, his vote will be 
counted on the side for which he gave his voice. So if a member, 
after the voices are given, calls out that, " the noes have it," or 
" the ayes have it," contrary to the determination of the speaker, 
he wiU be considered as giving his vote on that side.-^ 

390. The tellers being appointed, the question is again stated, 
and the speaker directs the house to divide. Previous to the year 

1 Hatsell, II. 194. division, it was the practice for distinguished 

* Hansard (3), XVII. 194. members, to request to be appointed tellers, 

* Hatsell, II. 201. in order that their names might be entered on 

* Formerly, when there was no mode in nse the journal, and a record of their opinion be 
for preserving and publishing the names of thus preserved. 

members voting on the different sides on a ^ May, 225. 

14 



158 LEGISLATIVE ASSEMBLIES. [PaET IL 

1836, the manner of di\T.ding was as follows. The speaker directed 
one party, generally the ayes, to go forth into the lobby, and the 
other to remain in the house. The ayes having gone out, the 
tellers, then, each with a staff in his hand, counted first the num- 
bers who remained sitting in the house ; and, when they were aU 
agreed, delivered in the number at the table, to the clerk, in order 
to prevent any dispute afterguards. Those in the house ha^dng 
been counted, the door was opened, and the members who went 
forth came in, and were counted by the tellers standing within the 
door, two on each side. Since the year 1836, a different mode has 
been in use, which has superseded the old one. Two lobbies, one at 
each end of the house, are employed for the purpose, and the teUers 
being appointed, the speaker then sends one party into each lobby. 
Two clerks are stationed at each of the entrances from the lobbies 
to the house, holding Ksts of the members arranged in alphabetical 
order, printed upon large sheets of thick pasteboard, so as to avoid 
the delay and trouble of turning over pages. The members then 
pass into the house again, first one side and then the other, and, as 
they pass, the clerks place a mark against each of their names. 
The tellers ascertain the numbers by counting the marks on each 
sheet.i 

391. Under the old mode, it was not always the case, that the 
ayes went forth, nor was it optional with the speaker which side to 
send forth. The rule v,"as, that those who were for an innovation 
or alteration of that, which, by presumption, is well enough, untH 
it is actually resolved to the contrary, ought to undergo the trouble 
and disadvantage, if it should happen to be any, of going forth, 
when a division takes place. This rule, when the question was upon 
passing a biU, required the affirmatives to go out ; but, upon other 
questions, sometimes the one side and sometimes the other ; and the 
application of the rule frequently gave rise to embarrassment and 
difficulty. The party, which remained in the house, were supposed 
to have the advantage, where but little interest was felt in the fate 
of a measure ; as they ■^^''ould, in such a case, probably have with 
them all the indolent, the indifferent, and the inattentive.^ 

392. When the house has been counted, or told, as the expression 
is, and the tellers are agreed upon the numbers, they aU place them- 
selves at the bar, those who have told on the part of the majority 
on the right hand, and the others on the left, and then come from 
thence up to the table together (bowing to the house three times, 

1 May, 273, 274, 275. ^ See Jefferson's JIanual, Sec. XLI. 



„] 



Chap. III.] formalities of proceeding. 159 

once at the bar, again at the middle of the house, and the third 
time when they have come up to the table) and the teller on the 
right hand declares to the speaker the number of the ayes and of 
the noes ; which having done, the tellers withdraw to Iheir places, 
with the same ceremony, and the speaker then reports the numbers, 
and declares the result to the house. When the numbers are 
equal, the tellers come up to the table " mixed," as it is called, 
instead of two on a side ; and the speaker, having reported the 
numbers, gives his own aye or wo, together with his reasons, if he 
thinks proper, and then declares the determination of the house.^ 
Until the declaration is thus made by the speaker, it is the duty of 
the serge ant-at-arms and other officers, to keep the avenues to the 
house closed, so as to prevent members from coming in or going 
out. 

393. Every member, who is in the house when a question is 
stated, must remain and give his vote, and cannot be permitted to 
withdraw ; and, for this purpose, every room, passage, gallery, or 
other place, to which there is no access, except through the house, 
is considered as a part of it ; but, if any member, in consequence 
of not being in the body of the house, does not hear the question 
stated, he may, if called upon to vote, demand to have it stated to 
him. 

394. The converse of the rule above stated also holds ; no mem- 
ber is permitted to vote, on the division, unless he is in the house 
when the question is put; and whenever it is ascertained, that 
members have voted, who were not in the house when the question 
was put, whether during the division, or before the numbers are 
reported, or after they are declared, or even several days after the 
division, the votes of such members will be disallowed, and the 
numbers cancelled.^ 

395. It sometimes happens, that several questions are pending 
at the same time, which are to be fallen consecutively, as where an 
amendment, or the previous question, is moved on a main question, 
and a division takes place on the first question, and is expected to 
take place on the others. In such a case, members who are not in 
the house, and consequently do not vote on the amendment or 
previous question, are nevertheless entitled to vote on the main 
question, and to be admitted to the house for that purpose. It is 
necessary, therefore, after the first division, and before proceeding 

» Hatsell, II. 202; Scobell, 26. = May, 267, 268. Concerning the disallow- 

ing of votes, see Post, § 1836. 



160 LEGISLATIVE ASSEMBLIES. [PaET IL 

to another, that the doors should be opened for the ddniission of 
members.^ 

396. Whilst the tellers are counting the house, on a division, 
members should be silent, that the tellers may not be interrupted ; 
for, if any one of the tellers thinks there is a mistake, or if they are 
not all agreed, they must begin and count again. For the same 
reason, no member ' should remove from his place, when they have 
begun ; nor can any member be counted, standing or sitting on the 
steps, or in the passage ways, or in the area in front of the chair, 
but only in his seat.'^ If a mistake is made in the report of the 
numbers, the tellers being agreed, the mistake may be corrected ; 
but, if any difficulty or irregularity occurs, — as, where a stranger 
was inadvertently counted, — there must be a new division, if any 
member insists upon it.^ 

397. K any question arises, in point of order, or any difficulty 
occurs, which caUs for the interference of the speaker, dm-ing a 
division, the speaker must take upon himself to decide it " peremp- 
torily ; " for, as it cannot be decided by the house, without having 
a division upon a division, there is no other practical way of set- 
tling the question, without great delay and inconvenience ; and, in 
such a case, therefore, the determination of the speaker must be 
im.plicitly submitted to, until the division is over and the result 
ascertained and declared. The decision may then be revised by 
the house, and, if irregular or partial, may be corrected either by 
altering the numbers or by a new division. For the purpose of 
forming a determination upon questions arising in the course of a 
division, though there can regularly be no debate, the speaker may 
aUow members to express their opinions sitting in their seats, with 
their hats on in order to avoid even the appearance of debate ; but 
this cannot be done without the speaker's leave, and must be 
brought to a close at his pleasure.* 

398. One of the most remarkable occasions, on which the 
speaker of the house of commons was ever called upon to exercise 
the summary authority with which he is invested during a division, 
occurred in 1780, on the presentation of a petition by Lord George 
Gordon, praying for a repeal of the act which had just passed in 
favor of the Cathohcs. A motion being made for the house to 
resolve itself into a committee of the whole to consider the petition 
a division took place, and the yeas were directed to go forth into 

1 May, 270, 271. ^ Hatsell, 11. 201. 

2 Hatsell, IL 198. * HatseU, II. 199. 



Chap. III.] formalities of proceeding. 161 

the lobby. It was found impossible, however, for the members to 
leave the house on account of a tumultuous crowd of people who 
had taken possession of the lobby. This being reported by the 
sergeant-at-arms, the speaker directed him to send for the sheriff 
and magistrates of the county of Middlesex, and city of "Westmin- 
ster, within the limits of which parliament was sitting, to attend 
the house immediately. After some time, several of these officers 
attending in the house according to order, the speaker informed 
them of the circumstances, and that it was their duty to preserve 
the peace, and directed them to use their utmost exertions to 
restore peace and good order. They then withdrew, and having 
succeeded in clearing the lobby the division proceeded. During aU 
this time, it was the duty of the members to remain in their places, 
without doing or attempting any other business, while the speaker 
gave the necessary orders, without any previous vote or direc- 
tion.i 

399. The rule allowing members to speak sitting and covered 
during a division is confined to questions of order, referred to the 
decision of the speaker, and does not apply to distinct motions pro- 
posed for the adoption of the house ; as for example, where a mo- 
tion was made, after the numbers had been reported on a division, 
but had not been declared by the speaker, that the votes of certain 
members should be disallowed, on the ground of personal interest 
in the question, the speaker required the debate to be conducted 
in the ordinary manner.^ 

400. When a division takes place in a committee of the whole, 
the members are directed to arrange themselves on opposite sides 
of the house, and are numbered by the tellers, in the manner 
already described, as in use previous to the year 1836, unless five 
members require that the names shall be noted in the usual manner, 
in which case, the members are counted according to the new 
method.'^ 

401. In the house of lords, the question is stated, and the mem- 
bers answer, content, or not content, instead of aye or 7io, as in the 
commons. If the lord chancellor is unable to decide, or his decision 
is questioned, a division takes place. This is effected by the not-con- 
tents remaining within the bar, and the contents going below the 
bar, instead of withdrawing from the house. One teller is then 
appointed for each party, by whom they are respectively counted. 

1 Comm. Jour. XXXVII. 901. 3 May, 277 

2 May, 240. 

14* 



162 LEGISLATIVE ASSEMBLIES. [PaET II. 

When all the lords then present have been counted, they resume 
their places and the clerk calls over the names of those lords who 
hold proxies, ^^^ho, rising uncovered in their places, declare whether 
those for T\-hom they are proxies are content or not content. The 
lord chancellor or speaker if a peer gives his voice like the other 
lords, on being required by the tellers, but he does not leave his 
place to vote. The total number of lords present and of the prox- 
ies is then declared, and the question is decided by the joint major- 
ity of both classes of votes. In case of an equality of voices and 
proxies combined, the not contents have it, and the question is de- 
clared to be resolved in the negative. When this occurs, it is 
always entered in the journal. '• Then according to the ancient 
rule in the like cases, semper presiimiiur pro neg-ante, etc." The 
effect of this rule is different when the house is sitting judicially, as 
the question is then put, " for reversing " and not " for affirming ; " 
and, consequently, if the numbers are equal, the judgment of the 
court belov." is affirmed. The privilege of voting by proxy is pecu- 
liar to the house of lords, who sit in their o^m right, and for them- 
selves only ; in the house of commons, no man can make a proxy, 
because (as it is said) the members represent others, and are in 
effect but proxies or as it were deputies themselves.^ The form of 
taking the question is the same when the house is in a committee, 
except that proxies are not allowed.- 

402. It is not the practice, in either house of parliament, to 
record on the journals the names of the members voting on either 
side ; nothing more appearing there than the niunbers on the divis- 
ion. In the house of commons, since the introduction of the new 
mode of dividing, a practice has prevailed, by -which the votes of 
the members are made kno^m and preserved. The printed fists of 
the members, made use of on the division, are sent to the printer, 
who pruits the marked names in their order ; and th<^ division fists 
are defivered in the house on the fofiowing morning, together v^-ith 
the printed votes and proceedings. In the house of lords, the names 
of those members, who dissent from any vote or resolution of the 
majority, may be entered on the journals together with their rea- 
sons, in the form of T\^hat is caUed a protest. 

403. In the legislative assembfies of this country, besides the 
method by general consent, there are two modes in use, for taking a 
question, in the fijst instance, both of which are derived to us from 
methods practised in England. The first is that by the voices 

1 WHtelocke, L 390. 2 May, 279; Appendix, VUI. 



Chap. III.] formalities of proceeding. 163 

already described. The other differs from it, by the members hold- 
ing up the right hand, instead of answering aye or no. When this 
form is used, the presiding officer puts the question affirmatively, 
as many as are of opinion that, etc., will manifest it, by holding- vp the 
rigid hand, or simply, ivill manifest it ; and negatively, as many as 
are of a different opinion ivill manifest it, or, will shovj their dissent, 
by the same sign, or, in the same manner; and, the members on the 
different sides, respectively, thereupon hold up iheir right hands as 
directed. If the presiding officer is unable to decide by the sound 
of the voices, if the question is taken in that manner, or from the 
show of hands, or his decision is questioned, a division takes place. 
404. The most common form of dividing is that prescribed by the 
rules of the house of representatives in congress, namely ; the members 
simply rise in their seats and stand uncovered, first those in the af- 
firmative and then those in the negative. If the speaker still doubts, 
or a count is required, the speaker names two members one from each 
side, to count the members in the affirmative ; which being reported 
he then names two others one from each side, to count those in the 
negative ; these being also reported, the speaker then rises and states 
the decision to the house. In telling the house, the tellers take 
their stand in the area in front of the speaker's chair, and first those 
in the affirmative, and then those in the negative, pass between 
them. A division and count by tellers can only take place,i upon 
a motion seconded by at least one fifth of a quorum of the mem- 
bers. In the house of representatives of Massachusetts, when a 
division takes place, the members rise in their seats, first on one 
side and then on the other, and are counted by the monitors of the 
house, who are officers appointed at the commencement of each 
session, two (of different political pai-ties) for each division of the 
house, and sitting with the divisions to which they belong. The 
monitors count the members in their respective divisions, and return 
the numbers to the speaker, in order, commencing with the first ; 
the members of each division remaining standing, until the vote of 
that division is declared, when they resume their seats. When the 
numbers are returned on each side, the speaker adds them up, and 
declares the result. The monitors vote and are counted with the 
other members. Other methods of dividing are doubtless in use, 
varying from those described, according to the circumstances of 
different assemblies ; in all, however, the duties of the members, 
and the authority of the presiding officer, are the same as in the 
house of commons. 

1 Rules 4. 



164 LEGISLATIVE ASSEMBLIES. [PaRI II. 

405. Another mode of taking a question, which is in common 
use in this country, and which is of American origin, is intended to 
ascertain the names as weR as the numbers of those who vote on 
each side ; ^\-ith a view to their being entered in the jom-nals, or 
other^dse preserved in an authentic form, in order that the people 
may know how their representatives vote on important occasions. 
■ This proceeding is denominated taking the yeas and nays. It has 
not been introduced, an}'Vk-here5 as the ordinary mode of taking a 
question, but as a substitute for that mode, when so resolved by the 
assembly, or other\vT.se required by law. As it is the minorit}^, gen- 
erally, who desne to have the votes preserved and made knov^m to 
the people, power is usually conferred upon a number less than a 
majority, either by the constitution or by a rule of the assembly, to 
require a question to be taken by yeas and nays. "When a ques- 
tion is pending, therefore, or is about to be taken, if any member 
desires it to be taken in this manner, he makes a motion that "^'hen 
the question shall be taken, it be taken by yeas and nays, and if the 
requisite number agree A^ith him, it is so ordered. The question, 
then, when taken, is taken in that manner, in the first instance ; 
without being prcNT-Ously taken by the voices or by a show of 
hands, as is the case on a division in the ordinary form. 

406. When or how this practice iirst began is a matter of un- 
certainty ; but it appears to have been fnst made use of by the 
congress of the confederation. That body voted by States, and the 
delegates from each cast the vote of their State. Consequently, it 
Vv"as necessary, in order to knovv' whether a vote T\'as correctly de- 
clared, to knovv" how each indi^tidual delegate voted, on a given 
occasion. This method was, therefore, invented or adopted in 
that assembly, in the first instance, in order to determine, whether 
the votes were correctly declared. This appears to have been the 
only pui'pose, for which this mode of taking the question was 
originally invented and adopted ; inasmuch, as, in a body, which, 
like the congTess of the confederation, conducted its proceedings 
in secret, the constituents vv^ere not entitled to know "^'hat its pro- 
ceedings ^^ere, or in vi'hat maimer their representatives voted, 
on any particular occasion. The obvious facihty which this method 
furnishes of making known to constituents how their representatives 
vote, where the proceedings of an assembly are accessible, has made 
it a favorite method of taking a question, and led to its general 
use in our legislative assemblies. It is usually caUed, as it is in 
fact, an American practice. In the first code of rtdes promulgated 



Chap. III.] formalities of proceeding. 165 

by congress in July, 1777/ there is no mention whatever of this 
subject ; but in the month of August following a specific rule was 
made, by which it was resolved by congress, " that if any member 
chooses to have the ayes and noes taken upon any question, he 
shall move for the same previous to the president's taking the sense 
of the house on such question, and, if the motion be seconded, the 
individual members of each State shall be called upon to answer 
aye or no to the question, which answer shall be entered on the jour- 
nal, and the question be determined by the majority of States, as 
the majority of votes in each shall make appear." "^ This rule was 
inserted in the code of May, 1778, and again in that of May, 1781, 
and continued in force until the adoption of the constitution of the 
United States. In that instrument, this mode of taking a question 
was recognized as an existing practice, and provided for, in both 
houses, on the demand of one fifth of the members. Tliis provision, 
or its equivalent, has been generally adopted in the State constitu- 
tions since made. 

407. In order to take a question in this manner, it is stated by the 
presiding officer on both sides at once, namely : — As many as are 
of opinion that, etc., wiU, when their names are called, answer, yes ; 
and as many as are of a different opinion will, when their names are 
nailed, answer, no ; the roll of the assembly is then called over by 
the clerk, and each member, as his name is called, rises in his place, 
and answers yes or no ; and the clerk first responding to the mem- 
ber, by repeating his answer, in order to be sure that he apprehends 
it, then notes it on the roll. "When the names have all been called 
over, first, in regular course, and then those who did not answer 
when their names were called, together w'ith the names of those 
members, whom he may be directed by the presiding officer to call, 
and the names of such as having already voted wish to change 
then votes, and noted the answers, it is usual for the clerk to read 
over first the names of those who have answered in the affirmative, 
and then the names of those who have answered in the negative, in 
order that, if he has made any mistake in noting the answer, or has 
omitted to note the answer of a member, the mistake may be cor- 
rected. The clerk then gives the fist to the presiding officer who 
states the numbers and declares the result.^ 

1 In the constitution of North Carolina, be printed, and made public, immediately af 

which was adopted in 1776, it is provided, ter the adjournment. 

that upon a motion made and seconded, the ^ J. of C. III. 349. 

yeas and nays, upon any question, shall be ^ Appendix, IX. 
taken and entered on the journals, which shall 



160 LEGISLATIVE ASSEMBLIES. [PaUT II. 

408. This proceeding has been deemed so important, in the 
United States, that, in several of the constitutions, it is provided, 
that the yeas and nays of the members of either branch shall be 
taken and entered in the journal, at the request of a certain specified 
number of the members present. Li the constitutions of the United 
States, Maine, Rhode Island, New Jersey, Virginia, Michigan, and 
Connecticut, the number is one fifth ; in those of Maryland, (as to 
the house of representatives,) Missouri, and Arkansas, five mem- 
bers ; in those of Mississippi, Texas, and California, three members ; 
in those of Pennsylvania, North Carolina, Georgia, Kentucky, Ten- 
nessee, Ohio, Indiana, Louisiana, Illinois, Alabama, Florida, and 
Iowa, tw^o ; and in those of New Hampshue, Vermont, Delaware, 
and Maryland, (as to the senate,) one. Li Michigan, the number 
required is one fifth of the members elected ; in the other assem- 
blies, in which one fifth is required, it is one fifth only of those pres- 
ent. In Wisconsin, the number of members requisite to demand 
the yeas and nays is one sixth of those present. In the other 
States, there is no constitutional provision on the subject, 

409. Besides these provisions, according to which a certain speci- 
fied number of the members may require any question to be taken 
by yeas and nays, there are also provisions, which require certain 
specified questions to be taken in this manner, whether requestecJ 
by any of the members or not. In the constitutions in which tht 
executive is invested with a qualified veto, it is generally provided, 
that the question, on passing a bill notwithstanding the objections 
of the executive, shall be taken by yeas and nays, and that the 
names of the members voting on either side shall be entered in the 
journals. A similar provision exists in most of the constitutions, 
in- reference to amendments of the constitution, when the legisla- 
ture is authorized to make or propose amendments. It is also 
required, in many of the constitutions, that the yeas and nays 
should be taken on other special occasions. 

410. The use of protests or dissents, entered in the journals, 
which in England is peculiar to the house of lords, prevails here in 
all our legislative assembfies, and, in some of the States, is expressly 
regulated and secured by constitutional provisions. By the consti- 
tutions of New Hampshire, Vermont, North Carolina, Florida, 
Tennessee, Ohio, Michigan, Iowa, and Alabama, any one member of 
either branch may dissent from and protest against any act or pro- 
ceeding, which he considers injurious to the public, or to any indi- 
vidual, and have his reasons therefor entered in the journal. By the 
constitution of lUinois, the same right is secured to any two members. 



Chap. III.J fokmalities of proceeding. 167 

411. Where no provision is made, either by the constitrttion or 
the laws, in reference to taking questions by yeas and nays, or as to 
the right of one or more of the members to dissent from and protest 
against the proceedings, these subjects may be and usually are, 
(particularly the taking of questions by yeas and nays,) regulated 
by the rules and orders of each assembly. Where this is not the 
case, they must be determined, in each particular case, upon a mo- 
tion made and the question stated, like all other questions, by a vote 
of the majority. The constitutional provision above mentioned 
refers only to members of the same assembly, and not to members 
of a coordinate branch, or to the coordinate branches themselves, or 
the executive. Protests, coming from these individuals or bodies, 
therefore, as well as those of strangers, must be determined by a 
vote in each particular case. 



Section VI. — Of the Principle or Rule of . Decision in a 
Legislative Assembly. 

412. The rule of decision, in all councils and deliberative assem- 
blies, w^hose members are equal in point of right, is, that the will 
of the greater number of those present and voting, — the assembly 
being duly constituted, — is the will of the whole body. Hence 
whatever is regularly agreed upon by a majority of the members 
of a legislative assembly is a thing " done and past" by that body. 
Where the assembly is equally divided, there is, of course, not a 
majority in favor of the proposition, which is put to vote, and that 
proposition is consequently decided in the negative. 

413. The right of the majority thus to decide, which is instinc- 
tively admitted as an ultimate fact, is also founded in good reason. 
In the first place, as has already been remarked with reference to 
electors, the members being supposed equal, it is at least probable, 
if not certain, 1hat there will be more knowledge, wisdom, and vir- 
tue in a majority 1han in any smaller number ; secondly, there is no 
other practicable way, by which, in the last resort, any matter can 
be concluded, in reference to which there is a diversity of opinion ; ^ 
thirdly, the supremacy of the majority is not the dominion of a cer- 
tain number of the individual members arrayed together for the 
purpose of governing the others on all questions and subjects ; but 

> " If the consent of the m;\j6rity shall not consent of every individual can make any 
in reason be received as the act of the whole, thine; to be the act of the whole." — Locke on 
and include every individual, nothing but the Civil Government. 



168 LEGISLATIVE ASSEMBLIES. [PaRT II. 

those w^ho constitute the majority or minority on any one point 
may change places on the next question that arises; and, fourthly, 
as a council or other organized assembly, consisting of several 
members, is considered as one person or body, as to aU other per- 
sons and bodies, its will can be no other than that which predomi- 
nates in it, where there are several discordant wills among the 
members. 

414. For these reasons, the lav^^ of the majority is universally 
admitted in aU legislative assemblies ; ^ unless, in reference to par- 
ticular cases, persons or circumstances, a different rule is prescribed, 
by some paramount authority, or is agreed upon beforehand and 
established by the assembly itself, by which a smaller number is per- 
mitted, or a larger number is requued, to do some particular act. 
But even in these cases, it is the will of the majority that governs; 
because it is by a major vote, in the first instance, that the rule 
itself is established } or, where the rule is established by the consti- 
tution, or by law, it derives its authority from the sovereign power 
of the people acting in a constitutional manner, which ultimately 
resolves itself into the will of the majority. The constitution of 
the United States, requires the agi-eement of two thirds of each 
branch to pass a bill, notudthstanding the objections of the presi- 
dent, and also allows one fifth of the number necessary to a quorum 
to require a question to be taken by yeas and nays. There are 
examples of the establishment by express provision of a rule of 
decision, different from the majority. 



Section VII. — Of the Journal or Record of the Proceedings. 

415. The official record of what is " done and past," in a legis- 
lative assembly, is called the Journal. It is so called, because the 
proceedings are entered therein, in chronological order, as they occur 
from day to day ; the business of each day forming the matter of 
a complete record by itself; hence the record is frequently spoken 
of in the plural as the journals. 

1 In the monthly, quarterly, and yearly sense of the aggregate body, having regard to 

meetings of the Qvxakers, as well as those of age, character, judgment, piety, and numbers, 

committees and select bodies from them, the combined, to be gathered and ascertained by 

mode of acting and deciding is, "not by a nu- the clerk, who is uniformly the presiding of- 

merical or any other fixed majority of votes, ficer." — By Shaw, C. J., Earle v. Wood, 

given by those authorized and qualified to give Cushing's Reports, VlIT 454 
a voice iipon any question; but upon the solid 



Chap. III.] formalities of proceeding. 169 

416. In the two houses of parliament, the clerks take minutes of 
all the proceedings, orders, and judgments, of their respective 
houses, as they occur, and make short entries of them in their min- 
ute-books. These minutes are printed and distributed among the 
members daily, under the title of " Minutes of the Proceedings " 
in the lords, and of " Votes and Proceedings," in the commons ; the 
latter " being first perused by the speaker," and corrected if neces- 
sary. From these, and from the papers on file, it is the duty of the 
clerks afterwards to prepare the journals, in which the entries are 
made at greater length and with the forms more distinctly pointed 
out. The journal of the commons is printed, from time to time, 
during the seselon ; that of the lords not until after its termination. 
All persons mny have access to the journals of the t"WO houses, in 
the same manner as to the records of the courts.^ 

417. In this country, the clerks make similar minutes and entries 
of the daily proceedings, which either constitute the journal, or are 
used in making it up at the end of the session. The journal, as it 
is thus made up, is published in some of the States from day to 
day ; in others, not until the close of the session ; in others again, 
it is not published at all. 

418. The jom-nal'is to be kept or made up, in the first instance, 
by the clerk alone, who is the sworn recording officer of the assem- 
bly, subject only to the control of the assembly itself, and not to the 
control of the presiding officer,- or of any other member ; though 
in cases of difficulty and importance, the form of entry has been 
settled by a committee appointed for the purpose.^ So, too, the 
assembly itself may direct a particular proceeding to be entered,^ or 
not to be entered,'' on the journals, or to be entered thereon in a 
particular manner," or with explanatory remarks stating the grounds 
of it." Li general, it is the custom, in the legislative assemblies of 
the United States, to make the entries in the journals in a more 
concise and summary form. It appears to be a general rule, in the 
keeping of the journal of a legislative assembly, that nothing shall 
be spread upon it at length, by the way of correction, or otherwise, 
which the assembly has previously refused to admit.^ 

419. The practice is very general, with us, though the secretary 

1 Grey, IT. 340. • Hatsell, U. 354, n.; Hans. (1) XXXVHL 

2 Hatsell, n. 339, h. 194. 

8 Hatsell, n. 216, n. ' Pari. Reg. LVH. 593; Hans. (3) XLIX 

* J, of C. VII. 60 ; J. of H. 29th Cong. 1st 331. 

Sess. 1047 ; Comm. Jour. LV., 783, 785. « Cong. Globe, XV. 1064, 1065. 
» Pari. Reg. XL VIII. 59; Cav. Deb. I. 66. 

15 



170 LEGISLATIVE ASSEMBLIES. [PaKT II. 

or clerk is an independent officer, and, in the first instance, makes 
up his record of the proceedings of the assembly, without any dic- 
tation, for the clerk to read over, at the commencement of each 
daUy sitting, the journal of the preceding sitting. The journal is 
to be corrected, either at the suggestion of a member, or upon mo- 
tion, ^when the reading is completed. It is then considered as 
approved by the assembly ; to which no formal vote or proceeding 
is necessary ; if the correction suggested or moved is made, or none 
is suggested, the approval of the assembly follov^^s of course. This 
proceeding cannot take place ^dthout the presence of a quorum. 
The practice of reading and revising the journal, in the manner 
above stated, is generally provided and regulated by each assembly 
for itself by a special rule. But even if this is not the case, the 
practice is so general, that it must be regarded as incidental to the 
duty of keeping a journal. Though the correction of the journal 
commonly occurs immediately after the reading, it may be made at 
any time aftervi^ards, vi'hen a mistake is discovered.^ 

420. If, in consequence of such correction, the apparent deter- 
mination of the assembly is changed, the alteration takes place nev- 
ertheless, accordingly, and aU the subsequent proceedings must 
conform to it, in the same manner as if it had been originally so 
recorded. Thus if a bill is recorded as having passed one of its 
stages, and, by a subsequent correction of the vote, it is ascertained 
that the bill did not pass, as supposed, the determination of the 
house is altered accordingly, and all subsequent proceedings are 
null and void.^ 

421. In the senate of the United States, it is provided by the 
first rule of that body, that the president having taken the chair, 
and a quorum being present, "the journal of the preceding day 
shall be read to the end that any mistake may be corrected that 
shaU be made in the entries." In the house of representatives of 
the United States, it is made the duty of the speaker, by the sixth 
rule, " to examine and correct the journal before it is read," and, by 
the first, on the appearance of a quorum, to " cause the journal of 
the preceding day to be read." Under these rules, the practice is 
substantially as above stated, except, that the speaker, in the house 
of representatives, re^dses the journal and corrects it before it is read, 
and if any mistakes occur, or are pointed out, on the reading, he 
directs the proper correction to be made, in pursuance of his general 
authority to re^dse the journal. If a correction takes place by the 

1 CoD.ff. Globe, ym. 93. ■ J. of H. Slst Cong. 1st Sess. 1436. 



Chap. III.] formalities of PROCEEDiisra. 171 

authority of the speaker, or otherwdse, on the reading, the journal 
itself ought to be altered accordingly ; if, by a vote of the assembly, 
after the reading, the proceedings should be recorded at length, and 
thus show the alteration ; particularly as the correction may be 
made after a considerable interval, and the journal may, in the mean 
time, have been printed. 

422. A record or minute of the proceedings of a deliberative 
assembly of any kind is so essential to the convenient and efficient 
exercise of its functions, that it must be considered as a necessary 
incident to the existence of every such body. But the importance 
of having and preserving such a record of the votes and acts of a 
legislative body, in a form accessible to the public, has been con- 
sidered so great in this country, as to be required by express consti- 
tutional provisions. This requisition, though imperative as to 
keeping a daily record of the proceedings, leaves the form and 
manner of keeping it wholly to the assemblies themselves, who 
may, notwithstanding, direct what entries shall be made therein.^ 

423. The constitutions of the United States, and of all the 
States, except Massachusetts, and South Carolina, require each 
branch of the legislature to keep and publish a journal of its pro- 
ceedings. In several of the States, the requisition to publish is 
general, without limitation or condition ; but, in Vermont, a vote 
of one third, and in Connecticut, of one fifth, of the members, is 
necessary ; by the constitutions of the United States, Virginia, 
Missouri, Arkansas, and Maine, the publication is to be made from 
time to time ; by those of New Hampshire, Delaware, Alabama, 
North Carolina, Florida, Vermont, and Georgia, it is to be made 
immediately, or as soon as convenient, after every session ; by those 
of Pennsylvania, Kentucky, and Louisiana, the journals are 
required to be published weekly ; and by the constitutions of the 
United States, Maine, Connecticut, New York, Pennsylvania, Del- 
aware, Tennessee, Alabama, Michigan, Arkansas, Wisconsin, and 
Missouri, those parts are to be omitted, which the public welfare 
requires should be kept secret. The phrase " to keep a journal," 
seems borrowed from the technical language, as the keeping of a 
journal corresponds to the practice, of mercantile bookkeeping. 
The term evidently means to make a permanent record of the daily 
transactions.^ 

424. It is in general competent to a legislative body to rescind 

1 J. of H. 29th Cong. 1st Sess. 1047. given of the word "keep," in Johnoon's Dio- 

*lt is remarkable, that, out of the gi-eat tionary, there is not one which denotes the 
aumber, thirty nine, significations, which are sense here ascribed to it. 



172 LEGISLATIVE ASSEMBLIES. [PaRT II, 

any of its orders, resolutions, or other proceedings, either of the 
same or of a former session. When this is done, the operation or 
effect of the matter rescinded is entirely annulled; though the entry 
itself still remains upon the jom-nal. It sometimes happens, how- 
ever, that it is not only desired to rescind or annul the effect of a 
former proceeding, but to treat it with strong disapprobation or 
contempt ; in which case, the obnoxious entry itself is expunged, 
that is, erased or obliterated from the journal. This proceeding is 
of extremely rare occurrence. In 1772, the house of commons 
passed a vote of thanks to Dr. NoweU, for his sermon preached 
before the house, at their request, and very soon after, in the 
same session, ordered the entry of this vote to be expunged. 
In 1782, the house of commons ordered all the entries relative 
to Mr. Wilkes, in the journals of the year 1769, to be expunged. 
In these cases, it appears, that the entries ordered to be 
expunged ^\^ere hteraUy erased from the original journal, though 
they both appear in the printed copies ; the former in a memo- 
randum by the clerk, in the place where the order was originally 
entered, stating the order, and that it had been expunged from 
the votes by the order of the house, and the latter precisely as 
they were originally made. In the house of lords, the protests, 
or parts of them, entered by the members have frequently been 
ordered to be expunged ; an order which is usually followed by 
a protest. In our legislative assemblies, this proceeding has 
occasionally taken place ; in most instances the expunging being 
effected by an actual obliteration of the obnoxious passages ; 
on one memorable occasion, by dra"^dng black lines around and 
writing the word expunged across the offending matter. The right to 
expunge whatever it pleases from the jom-nal of its proceedings is 
one vv^hich can only be hmited, like the right of expulsion, by the 
absolute discretion of the assembly ; and is not restrained by the 
constitutional right of a member, to enter a protest thereon, or by 
the constitutional injunction to keep and publish a journal.^ 

425. It remains only to consider the character of the journals, 
and the competency and effect of entries in them, as evidence 
in a court of justice. The house of lords, having a power of 
judicature, in matters of la-w and equity, in the last resort, is a 
court of record, and its journals are consequently considered as 
public records. The house of commons having no such power 
of judicature, its journals are not usually described as records, 

1 J. of H. 29th Cong. 1st Sess. 1047; Cong. Globe, XX. 13. 



Chap. III.] formalities of proceeding. 173 

But, in truth, both houses have power of judicature and are 
consequently courts of record, in certain matters. In the lan- 
guage of Sir Edward Coke,^ " the lords in their house have power of 
judicature, and the commons in their house have power of judi- 
cature, and both houses together have power of judicature." 
The commons exercise judicial functions, in adjudicating upon 
controverted elections and returns ; and both branches exer- 
cise judicial functions, in inflicting punishments for breaches of 
privilege and contempts. The two branches, acting concurrently, 
exercise a power of judicature in bills of a judicial character, such 
as bills of attainder, pains and penalties, pardon and divorce. Li 
performing their legislative and judicial functions, the two houses 
do not proceed in separate and distinct capacities ; but are con- 
stantly exercising both functions at the same sitting, and in refer- 
ence perhaps to the same subjects ; and their proceedings upon 
both are entered by their sworn officers in a similar form, and in 
the same page of one book. 

426. Wherever, therefore, the journals of either house have the 
character of records, they are admissible as such, and prove the 
fact adjudicated, in the same manner and to the same extent with 
the records of the judicial courts ; where they do not possess that 
character, they are evidence only of the proceedings which they 
purport to record, but not of the facts affirmed or implied in those 
proceedings.^ Thus a copy of the minutes of the reversal of a 
judgment in the house of lords, as entered in the jom-nals, is evi- 
dence of the reversal, like the record of a judgment in any other 
court ; so the proceedings of the house of commons, upon a contro- 
verted election or return, as recorded in the journals, are evidence 
of the right of membership ; and, in like manner, a resolution of 
either house, as entered in the journals, that a party had been 
guilty of a breach of privilege, or of a contempt, would be con- 
clusive evidence of the fact, that the party had been adjudged by 
the house to be guilty of such offence. In other cases, in which 
the houses are not in the exercise of judicial functions, their journals 
are admissible as evidence of the proceedings, but not of the facta 
alleged or implied in those proceedings. Thus, upon the indict- 
ment of Titus Oates for perjury, a resolution of the house of com- 
mons, alleging the existence of a popish plot, was rejected as 

1 Fourth Inst. 23. dence, I. 386; Rex v. Lord George Gordon, 

2 With respect to the character of the jour- Douglass's (K. B.) Reports, II. 593; Jones v. 
nals as records, see Fourth Inst. 23 ; Comm. Randall, Cowper's Reports, 17 ; Hawkins'* 
Jour. I. 517, 673, 676, 683; PhiUipps on Evi- State Trials, 683; May, 200. 

15* 



174 LEGISLATIVE ASSEMBLIES. [PaET II. 

evidence of that fact ; although it was clearly admissible to prove 
that the house of commons had so resolved. The journals of the 
tvi^o houses, therefore, as evidence, stand upon the same grounds ; 
although those of the lords possess the character of records, to a 
greater extent ; they are both good evidence of proceedings in par- 
liament, but are not conclusive of facts, alleged by either house, 
unless those facts are vv'ithin their immediate jurisdiction. Thus, a 
resolution might be agreed to by either house, that certain parties 
had been guilty of bribery ; but in a prosecution for that offence, 
such a resolution would not be admitted as proof of the fact, 
although founded in evidence taken upon oath. In this country, 
the same principles are evidently appUcable, in the absence of any 
special provision, to the proceedings of our legislative assemblies. 

427. The contents of the jom-nals, according to the practice in 
England, may be proved in two modes ; first, by the production of 
a copy of such portions as may be wanted, authenticated either by 
the certificate and signature of the clerk, or by the oath of the party 
himself or some other person, that it is a true copy from the original 
m the journal office ; and, second, by the attendance of the clerk or 
other proper officer in court, either with the printed journal, or with 
extracts which he certifies to be true copies, or if necessary, with 
the original manuscript journal ; but, where the clerk attends, the 
previous consent of the house, or of the speaker, if the house is not 
sitting, must fkst be obtained. These different modes of proof 
seem to indicate that the character of the journals, as instruments 
of evidence, is either micertain, or that it is differently regarded ha 
different courts. 

428. In this country, the contents of the journals, where they 
are not printed and published by public authority, or until they are 
so published, are probably proved by copies of extracts authenti- 
cated by the certificate and signature of the clerk, in the manner 
in which the proceedings of public bodies are usually proved. In 
some of the States, as in Massachusetts, the mode of proof is regu- 
lated by law. Where the journals are printed merely by the order 
of the assembly itself, it is held that prhited copies are not evidence, 
unless compared and certified. Where they are requhed by law to 
be printed, and are printed accordmgly by the authorized printer, — 
as in certain States \vhich have been mentioned, — it w^ould seem, 
that they ought to be placed, as evidence, upon the same footing 
with the printed statutes. 

429. Where the practice prevails of taking minutes of the " votes 
and proceeduigs" in the first instance, and of making up the 



Chap. III.] * formalities of proceeding. 175 

journal therefrom afterwards, the former must be considered as 
bearing the same analogy to the latter, that the docket of the clerk 
of a judicial court bears to the complete record. The votes and 
proceedings are usually printed from day to day, for the use and 
convenience of the members ; but, when the journal comes to be 
made up, if there is any discrepancy between the two, the journals 
are held to be correct.^ 



Section VIII. Of the Printing by Order of a Legislative 

Assembly. 

430. The art of printing furnishes so obvious a mode of facili- 
tating the proceedings of a legislative assembly, that, at the present 
day, it has almost entirely or to a considerable extent superseded 
the reading at length of papers and documents of every description 
in all assemblies in which much business is transacted. It has also, 
for the most part, taken the place of all other modes of making their 
acts and doings known to the public. 

431. The practice of printing the votes and proceedings of the 
house of commons, which commenced about the year 1680, became 
firmly established, though not without some stiuggle, in the begin- 
ning of the eighteenth century, and has continued every session 
since that time. The practice of printing bills and other documents 
which began at a later period is now also general. The immense 
accession to the business of parliament, resulting from the ex- 
traordinary activity, physical and mental, which distinguishes the 
present day, could not have been properly transacted, according to 
the established methods of proceeding, without the aid of the press. 
The business of receiving and proceeding upon petitions will alone 
illustrate the truth of this statement. In the five years preceding 
and including the year 1843, the number of public petitions pre- 
sented in the house of commons was 94,292 ; every one of which, 
according to the ancient method, would require to be read and pro- 
ceeded upon, and might be debated, by itself ; and to do this would 
have required more than the whole time of the house. The diffi- 
culty has been obviated by the appointment of a standing commit- 
tee on public petitions, by whom they are classified, analyzed, and, 
when necessary, directed to be printed at length. Besides petitions, 
there are three other classes of papers or documents, which are now 
generally printed, namely, the accounts, returns, and other papers 

1 Pen-y & Knapp, 536 ; Pari. Deb. V. 20. 



176 LEGISLATIVE ASSEMBLIES. ' [PaRT IL 

presented from the public officers, by order of the house ; biUs 
pubKc and private ; and reports of committees. In regard to the 
first, there is a select committee appointed at the commencement 
of each session, to assist the speaker in all matters which relate to 
the printing executed by order of the house, and for the purpose of 
selecting and arranging for printing returns and papers. The busi- 
ness of this committee is to examine all papers, and determine 
whether they shall be printed at length, or in the form of an ab- 
stract. Public bills are generally ordered to be printed, and not 
unfrequently more than once. Private bills are requhed to be pre- 
sented in a printed form. Reports of committees are made acces- 
sible to the members and to the public in the same manner. In 
both houses of congress, and in the legislatures of the States, 
generally, it has become equally necessary to provide for the print- 
ing of every paper or docuiuent, "which may become the subject of 
leHslative consideration. 

432. In England, all papers printed by the order of either house, 
are distributed to the members of both ; those of past sessions are 
preserved; and all those which are ordered to be printed generally 
are accessible to the public in the several offices for the sale of par- 
liamentary papers, established under the management of the print- 
ers of the house, and the control of the speaker. Parliamentary 
papers are sold at the low rate of a half penny a sheet, which is 
supposed to be moderate enough to secure the distribution of them 
to all persons who may be interested in their contents. They 
may also be sent through the post-office at a lower than the ordi- 
nary rate, and by members during the session free of postage. In 
our legislative assemblies, measures are usually taken for the effec- 
tual distribution of aU public documents, by orders for the purpose. 
In congress, they are distributed by members, through the post- 
office, under the privilege of franking. But no regular provision is 
made for thek sale. 

433. It remains to be considered how far the order of a legisla- 
tive assembly "will justify or excuse the printing and publishing of 
that v/hich would otherwise be libellous. In reference to this ques- 
tion, the house of comm.ons and the court of king's bench are 
apparently at variance "with each other ; the former having resolved, 
" that the power of publishing such of its reports, votes, and pro- 
ceedings, as it shall deem necessary or conducive to the public 
interests, is an essential incident to the constitutional functions of 
parliament ; " and the latter having decided, " that the fact of the 
house of commons having directed their printers to publish aU their 



Chap. III.] formalities of proceeding. 177 

parliamentary reports is no justification for them, or for any book- 
seller who publishes a parliamentary report containing a libel 
against any man." If the privilege of freedom of debate may be 
considered, by analogy, as furnishing the true rule on this subject; 
and this seems the most reasonable and proper ground to place 
the matter upon ; the claim of the commons may be admitted in 
its fullest extent, and the doctrine of the court sustained at the 
same time, by limiting the publication to the members of the 
house, and this appears to be, in fact, the decision of the court of 
Idng's bench in the case referred to of Stockdale v. Hansard} In 
England, the question is now of little practical importance, in con- 
sequence of the passing of a statute, by which it is provided, that 
aU proceedings, criminal as well as civil, against persons for publi- 
cation of papers printed by order of either house of parliament, are 
to be stayed by the courts, upon delivery of a certificate and affida- 
vit, that such publication is by order of either house of parliament.^ 



Section IX. — Of the Attendance and Pay of the Members. 

434. Every member of a legislative assembly is under a consti- 
tutional obligation to attend the service of the house to which he 
belongs, both in the first instance, for the purpose of being quaUfied 
and assuming the functions of a member, and, afterwards, for the 
purpose of participating in the daily business. In the commons, 
house of parliament, and in all the legislative bodies of the United 
States, the attendance must be in person ; in the house of lords, 
after a member has appeared in person, and has been qualified, he 
may afterwards give his attendance and vote by proxy. If a mem- 



1 Adolphus and Ellis's Reports, XI. 253. tJfication. This transaction occan-ed in the 

2 For an account of this controversy, see 18th of Cliarles the Second, at which time the 
May, 156. In the case of Lake v. King, grand committees on grievances, religion, 
(Saunders's Reports, I. 131,) which was an trade, and courts of justice, which had been 
action of the case for printing and publishing a great political engine in the preceding reign, 
a libel, the defendant pleaded, that the sup- were still in use, and were authorized to 
posed libol was contained in a petition which receive and investigate the complaints rela- 
he caused to be presented and delivered to tive to those subjects respectively, without 
the committee of gi-ievances of the house of their being first refeiTed by the house. But at 
commons, which committee had full power the present day grand committees are abol- 
and authority to hear and examine such ished in parliament, and no committee, either 
grievances, by whom the same was taken of that body, or of any of onr legislative 
cognizance of; and that he afterwards caused assemblies, has any authority, in the first 
the petition to be printed and distributed to instance, to receive a petition. It may be 
the members of that committee, which was doubted, therefore, whether the case of Lake 
the publication complained of. The court of v. Kinff would now be considered as of any 
king's bench considered this as a sufficient jus- authority. 



178 LEGISLATIVE ASSEilBLIES. [PaET 11. 

ber neglects to give his attendance, when ordered by the assembly, 
ViT-thont any sufficient excuse, he may not only be taken into cus- 
tody, and punished, but may also be expelled. The power of 
expulsion, in such a case, is essential not merely to preserve the 
dignity and authority of the assembly, but Kkew-ise to the right of 
the people to be represented ; as, otherwdse, a constituency might 
be deprived of the services of a member whom they had elected, 
and, at the same time, be prevented from electing a member upon 
whose services they could rely. 

435. "WTien members absent themselves from their attendance 
upon the assembly, ^dthout leave therefor, or after leave of absence 
has been revoked, there are several modes of proceeding which may 
be resorted to in order to compel them to attend. The house of 
commons has sometimes directed the speaker to T\Tite circular 
letters to the sheriffs, to summon the members within their several 
counties to attend ; or to take measures to inform the several con- 
stituencies of the manner in wMch their members neglect their ser- 
vice ; and it is not uncommon, also, to order, " that no member 
shall go out of town without leave of the house ; " but the most 
common mode of enforcing attendance is by what is denominated 
a call of the house. 

436. The proceedings which take place on a call of the house, 
which are substantially the same in all legislative bodies, having 
been already sufficiently described,^ under the head of compelling 
the attendance of absent members, it is only necessary to refer to 
them in this place. 

437. A call of the house, though it is usual to give previous 
notice thereof, by passing an order for the purpose some days 
beforehand, is, in fact, incidental - to the general business and con- 
dition of the asseinbly, and a motion therefor may be made at any 
time, and upon any business ; ^ and, unless restrained or regulated 
by some rule,* ^\dll take precedence of and suspend any other 
motion then pending, whether principal or subsidiary ; thus, on a 

1 Ante, § 265 to 270. -(ras not, (J. of H. 23d Cong. 1st Sess. 341 ; J. 

2 J. of H. 20th Cong. 1st Sess. 1041. of H. 23d Cong. 2d Sess."368; J. of H. 26th 

3 J. of H. 21st Cong. 1st Sess. 669. Cong. 1st Sess. 233; J. of H. 32d Cong. 1st 
* The house of representatives of the United Sess. 813; Eeg. of Deb. X. Part XL 2735, 

States, after different decisions upon the point 2736); finally adopted a rale, that on motion 

■whether a call of the house Tras in order for the previous question and prior to the 

pending a motion for the previous question, seconding of the same, a caU of the house 

as, that it -svas, (J. of H. 19th Cong. 2d Sess. should be Ln order; but that after a majority 

264; J. of H. 26th Cong. 1st Sess. 233, 1081; shall have seconded the motion, no call shall 

Eeg. of Deb. XI. Part 11. 1332, 1333, 1337, be in order prior to the decision of the main 

1338; Cong. Globe, XTTT. 335); and that it question. (Eule 50.) 



ChAI'. III.] FORMALITIES OF PROCEEDING. 179 

motion to recommit with instructions/ or to postpone indefinitely,^ 
or for the previous question,^ or after the latter has been sus- 
tained,4 a call of the house may be moved for, and, if sustained, 
will supersede these motions respectively, as well as the subjects 
upon which they are moved, until the proceedings upon the call 
are at an end. The business thus suspended then revives again 
and proceeds as before. The motion for a call of the house, being 
merely incidental, can only be decided by a direct vote, and not by 
an order to lie on the table ; ^ and, on this motion, even under a 
general provision to that effect, it is not in order to ask to be 
excused fi'om voting.*" 

438. A second call cannot be moved for, when the first is 
decided in the affirmative, inasmuch as there cannot be two calls 
at once : " nor if the first motion is decided in the negative can 
there be a second, until some intervening business has taken place.^ 
While the proceedings are going on the assembly may pass any 
orders, as, for example, that absent members shall be brought in to 
make their excuses on a future day,^ or that members absenting 
themselves after the first call shall be sent forj^*^ which fairly relate 
to the subject. 

439. The proceedings on a call of the house may be terminated 
at any time by a vote,^^ or by an adjournment of the assembly,'- in 
which case, members under arrest are thereby discharged.^'^ In the 
mean time, members under arrest, though personally present, are 
not allowed to participate in the proceedings, or recognized as 
members of the assembly, by the presiding officer.^^ A call of the 
house is a matter of business, which can only take place in virtue 
of an order for that purpose made when a quorum of the assembly 
is present ; but it may, sometimes, however, in virtue of a special 
rule, be authorized by less than the ordinary quorum, for the pur- 
pose of compelling the attendance of absent members.^-^ In these 
cases, the assembly may take all the measures that properly belong 
to a call, as, for instance, the imposition of a fine for non-attendance,^'^^ 

1 J. of H. 19th Cong. 2d Sess. 264. " J. of H. IX. 651 ; J. of H. 20th Cong. 2d 

2 J. of H. 20th Cong. 1st Sess. 1041. Sess. 375. 

« J. of H. 26th Cong. 1st Sess. 233. 12 Cong. Globe, XVIII. 60; Cong. Globe, 

« J. of H. 20th Cong. 1st Sess. 1041, 656, 657. XXI. 1472. 

6 Cong. Globe, XIU. 335. "Cong. Globe, XV. 516; Cong. Globe, 

6 J. of H. 31st Cong. 1st Sess. 1538, 1539. XVIII. 926, 928, 929. 

1 Cong. Globe, VIU. 361. " Cong. Globe, XVIII. 928; but see Cong. 

8 Cong. Globe, XX. 177, 178. Globe, XIII. 602- 

9 J. of H. 29th Cong. 1st Sess. 1045, 1046 ; is xhe quorum for this purpose in the 
J. of H. 30th Cong. 1st Sess. 1035, 1036. lower branch of congress is 15. 

10 J. of H. 25th Cong. 2d Sess. 1289, 1300; is Cong. Globe, VIII. 287. 
Cong. Globe, VIII. 361; Cong. Globe, XVIU. 

eae. 



180 - LEGISLATIVE ASSEMBLIES. [PaET II. 

without the presence of the ordinary quorum ; and on any question 
that may be taken by less than a quorum, it is competent for a less 
number to order the question to be taken by yeas and nays.^ 

440. It will be perceived, that a caU of the house only operates 
to compel the attendance and presence of members on the particu- 
lar day on which the call is ordered to take place, or on the day or 
day-, to Avhich the caU may be postponed ; but not dming the inter- 
mediate time, or after^A'ards. Attempts are sometimes made to 
compel members not merely to attend at particular times, but to 
continue their attendance ; as, for example, by an order that no 
member do presume to go out of town Y%"ithout leave of the house. 
An old statute of 6 Henry 8, ch. 16, holds out an inducement to 
members to attend, by providing that every member, ^vho absents 
himself, T\ithout Hcense from the house, shall lose his wages ; but 
as the provision for wages has long since become obsolete in Eng- 
land, the penalty inflicted by this statute has noAV no longer any 
existence. 

441. When members absent themselves from their places merely, 
their attendance may be enforced v»men necessary, on particular 
occasions, by sending the officers of the house to summon them ; as, 
for example, it is a common proceeding, Avhen the house of com- 
mons is going upon very important business, to send the sergeant 
A\dth the mace into Westminster HaU, and the places adjacent, to 
summon the members to attend the servdce of the hottse. It seems 
to be a practice recently introduced in the house of commons, 
before proceeding to a division, to summon members in the rooms 
and places adjouiing, to attend in the house, by ringing a beU caUed 
the division bell. The same summons is given Vv'hen the speaker 
is called upon to coimt the house, on a suggestion, that forty mem- 
bers are not present. 

442. The subject of the attendance of the members of a legis- 
lative assembly may be left to stand upon the common parlia- 
mentary law, or it may be regulated by a special rule, if expedient. 
In the senate of the United States it has not hitherto been found 
necessary to resort to a caU of the house to enforce the attendance 
of the members;- some milder measme having been sufficient for 
that purpose. In the house of representatives of the United States, 
which is a more numerous body, a caU of the house, wMch is there 
regulated by special rules,^ is almost a daily proceeding; being 
incidental to other bu-siness, and, with an exception or two, always 

ij. of H; 32d Cong. 1st Sess. 651, 652, = Reg. of Deb. IV. Part L 773; Cong. GloLe, 

727; J. of H. 32d Cong. 2d Sess. 87, 145. XXI. 1533. 

' Rules 50, 62, 63, 64. 



Chap. III.] formalities of proceeding. 181 

in order. In that house a call is usually ordered when the num- 
ber of members present falls below a quorum ; provided there are 
fifteen members present, that being the smaller number fixed upon 
by the house, in pursuance of the constitution, for compelling the 
attendance of absent members. The only other thing that can be 
done, without a quorum, and for this no particular number is neces- 
sary, is to adjourn. When a call of the house takes place in this 
assembly, no time is fixed upon beforehand, and the proceedings, 
which, if thought proper, may at any time be suspended, are all 
immediate. 

443. A practice prevails in both houses of the British parliament, 
and in congress, growing out of the division of these assemblies 
into distinct political parties, by means of which the absence of a 
member is ordinarily looked upon ■v\dth more indulgence. Two 
members, of different parties, " pair off," as it is called, that is, they 
agree with each other to be absent at the same time ; by which 
arrangement a vote is neutralized on both sides of every political 
question, which arises during its existence, the relative numbers of 
the votes remaining the same, as if both the absent members were 
present. Members sometimes pair off", not only upon particular 
questions, or for one sitting, but for several weeks or even montlis. 
This practice is not recognized as a parliamentary proceeding. In 
congress, it sometimes happens, that only one of the members, by 
whom this agreement is made, is actually absent ; in which case 
the member present declines to vote ; giving, as an excuse, if need 
be, the fact, that he has paired off with such a member. The 
excuse is always admitted by the house. 

444. Members of the house of commons formerly received wages 
from the boroughs and places, which they represented. In the time 
of Edward III. four shillings a day were allowed to a knight of the 
shire, and two shillings to a citizen or burgess. This charge, in the 
case of poor and small communities, was considered as too great 
an evil to be compensated by the possible benefit of representation. 
But this practice has for a, long time been obsolete. Andrew Mar- 
veil, the poet, who died in 1678, and who had been a member from 
the time of the restoration, in 1660, is said to have been the last 
person, M^ho accepted wages for his attendance as a member. The 
only members of the house of commons, who now receive wages, 
as such, are the speaker, who receives an annual salary of five 
thousand pounds sterling, the use of a furnished residence, and of 
a service of plate, and the chairman of the committee of the whole 
on ways and means, who receives an annual salary of fifteen hun* 

16 



182 LEGISLATIVE ASSEMBLIES. [PaET IL 

ired pounds sterling. The latter takes the chan, whenever the 
house is in committee of the whole, and, by a rule recently adopted, 
is authorized to take the chair of the house, as speaker, during the 
temporary absence of that officer. 

445. In this country, the members of legislative bodies are paid 
for their services and expenses as such, either by the constituencies 
which they represent, or \vhich is the most common mode, from the 
public treasury ; and, in most of the States, the compensation of 
the meinbers has been deemed of sufficient importance to be made 
the subject of constitutional provision. By the constitution of the 
United States, and in those of most of the States, provision is 
made for the compensation of the members of the legislature by 
law, for their travel and attendance, and for payment thereof out 
of the public treasmy ; and, by many of them, provision is also 
made, that no law increasing or diminishing the rate of compensa- 
tion existing at any time shall take effect until after the termination 
of the legislature by which it is enacted. In Maine, a law increas- 
ing the compensation is only requned to be prospective ; and, in 
Massachusetts, New Hampshne, and Mame, in order to entitle 
members to their travelling expenses, they are required to attend 
seasonably, and not to depart without leave. The presiding officers, 
when they are members of the bodies over which they preside, 
receive usually additional compensation for performing the duties 
of the chair. 



CHAPTER FOURTH. 

OE THE FUNCTIONS OF THE EXECUTIVE IN CONTNECTION WITH 
THE LEGISLATIVE DEPARTMENT. 

446. The functions of the executive department, in its connec- 
tion vdih the legislative, are not of such a nature as to require the 
former to be considered as a branch of the latter.; and, though 
much less numerous and important with us than they are in Eng- 
land ; they yet touch upon, and have so important a connection 
^Adth, the legislative, that they deserve to be separately enumerated, 
and not left to be merely alluded to incidentally. Besides, the 



Chap. IV.] formalities of proceeding. 183 

executive is the head of the government, as the legislative depart- 
ment is the depository of the sovereign power, of all free countries. 
The executive is always ready to act, in the performance of its 
appropriate functions ; the legislative is only called into operation 
occasionally, or at stated periods, with considerable intervals. 
When the legislature is organized and proceeding with the public 
business, it is said to be in session ; the interval, when it is not in 
session, is usually denominated a recess. The executive is con- 
nected with the legislative department, at the commencement and 
close, and during the continuance of each regular session, of the 
latter. 

447. The British parliament is convened and held, at the time 
and place appointed by the king for the purpose, in virtue of his 
royal proclamation, and of the writs of summons and election, 
issued in pursuance thereof by the chancellor ; it is continued, from 
time to time, at the king's pleasure, by what is called a proroga- 
tion;^ and is finally dissolved by the same authority, or by the 
termination of that authority by the demise of the crown. Accord- 
ing to the theory of the British constitution, as it stood not many 
years since, there was no legal restriction upon the power of the 
king, in any of these particulars ; he might neglect altogether to 
call a parliament ; or he might call one and keep it in existence 
during the whole of his reign ; or he might call parliaments and 
dissolve them as frequently or unfrequently as suited his conven- 
ience or pleasure. But it is now provided by sundry statutes, that 
every parliament, unless sooner dissolved by the king, or by his 
death, shall have continuance for seven years and no longer ; ^ that, 
in all cases, writs shall be issued for the calling of a new parlia- 
ment, within three years from the determination of the next pre- 
ceding one ; and that, on the demise of the crown, the parliament 
then in being shall continue, or the last preceding parliament be 
revived, and proceed to act, for the term of six months, unless 
sooner prorogued or dissolved.-^ At the time fixed for the com- 
mencement of a new parliament, it is usual to postpone it, until a 
convenient season, for the despatch of business, by one or more 
successive prorogations, when it assembles for that purpose, and 
in a meeting of both branches in the house of lords, the sovereign, 

1 The right of the king to order an adjourn- sliould take place, his wishes are generally 

ment, which, as will be seen hereafter, is acceded to; as, otherwise, a prorogation would 

different as to its legal effect from a proroga- be sure to follow. 

tion, is not admitted in theory; but, whenever '^ Hatsell, II. 384. 

ae 6i{;uifie» liis pleasure that an adjournment ^ jyiay^ 40, 41. 



184 LEGISLATIVE ASSEMBLIES. [pART 11. 

in a speech from the throne, declares the causes of summoning the 
parhament. Sometimes the sovereign does not attend in person, 
but appoints commissioners by whom the causes of summons are 
declared. When this is done, the commons return to their house 
and the business of the session proceeds. The first thing usually 
done in both houses, though this is by no means imperative, is to 
take into consideration, for the purpose of respondhig to the senti- 
menta contained in, the royal speech. On the proposed answers in 
both branches, the members in opposition usually move their amend- 
ments, which are discussed and decided on party grounds. Besides 
the usual speech, at the commencement of the session, m which the 
general concerns of the nation are treated of, the sovereign after- 
wards during the session communicates important matters, to both 
branches, or either of them, by messages for the purpose. These 
messages are generally in VvTiting, but are sometimes verbal. The 
sovereign intervenes also, in the course of the session, for the 
approval of bills, which is done, in the presence of both branches, 
by the sovereign in person or by commissioners, in the manner that 
parliament is first opened. At the end of the session, parhament 
is prorogued or dissolved in the same manner. This is understood 
to have been substantially the form of proceeding in all our legis- 
lative assemblies previous to the revolution, as it is now in the 
colonial and provincial legislatures of Great Britain. But very 
considerable changes have been introduced by oui* constitutions, and 
the practice under them, since the period referred to. 

448. In this comitry, the times of holding the legislative assem- 
blies, and the periods for which they are respectively elected, are 
fixed by constitutional provisions; and, when assembled, they are 
not subject in any degree or manner to the control of the executive 
authority ; though, in most of the constitutions, power is giyen to 
the executive to convene the legislature on extraordinary occasions, 
and to fix the time of adjournment or prorogation, in case of a dis- 
agreement in relation thereto betu'een the two branches. In con- 
gress, from its first assembhng under the constitution, and during 
the administrations of Washington and the elder AdamxS, it was 
the custom of the president to open each session, in person, by an 
address to both branches, assembled together for the purpose in the 
representatives' chamber. This communication was usually shorter 
and more general in its character, than in more modern times, and 
was answered in the same manner, by each branch in person. 
With the advent of JVIr. Jefferson to the presidency the modern 
practice was introduced. The president, instead of a short address, 



Chap. IV.] formalities op proceeding. 185 

transmitted a more elaborate message in --Arriting to both branches, 
with his reasons for 'adopting that form. Answers were dispensed 
with ; but the different subjects treated of in the message were 
taken into consideration. This practice has ever since continued 
in congress, and has been adopted in the State governments, in 
which, however, as well as in congress, it is not imperative but 
optional. Communications of the executive, to the two branches, 
or either of them, in the course of a session, are by message. It is 
scarcely necessary to observe, that these messages are for the infor- 
mation of the bodies to whom they are communicated; who may 
consider of the matters therein referred to or not at their pleasure ; 
though it is customary to do so out of respect to the executive. 

449. It is the invariable practice therefore in all our legislatures, 
(and made necessary by express provision in some of the consti- 
tutions,) for the governor, president, or other executive head, at the 
commencement of every session, whether regular or special, to 
make a communication to the two branches, either by message or 
in person, usually by message, touching the general affairs and con- 
dition of the State, or relating to the particular subject for which 
the legislature is convened, and to recommend to them such 
measures as he may deem expedient. These communications may 
or may not be accompanied with other written documents, as the 
case may be. When other documents are referred to in a verbal 
address, they are usually sent in afterwards by message. 

450. In parliament, in congress, and in aU the States of the 
Union, except, it is believed,' Rhode Island, Delaware, Maryland, 
Virginia, North Carolina, South Carolina, Tennessee, and Ohio, 
the executive is invested with a veto power in matters of legis- 
lation ; or rather it would be more correct to say, that every act 
of legislation of the two branches, though drawn up in the form 
of a law, before it can become such, must be approved and signed 
by the executive. In parliament the veto is absolute ; but, inas- 
much as that body is now so constituted, that nothing can pass 
which is not agreeable to the sovereign, there has been no exercise 
of the veto power, in its direct form, for many years. In this 
country the veto power is not absolute, but conditional ; the legis- 
lative branches being authorized, in certain cases, to pass a law 
from which the executive approval is withheld ; and the executive 
being bound to exercise his right of approval or disapproval, within 

'^ If there are any others, in the thirty-one have escaped the author's notice, in a pretty 
States, of which tlie Union is composed, thev careful search. 

16* 



186 LEGISLATIVE ASSEMBLIES. [PaUT II. 

a given number of days. The direct interference of the executive, 
in any other form, would justly be considered -as unparliamentary, 
and unconstitutional. 

451. In this country the executive is very generally invested 
with authority either by constitutional provision, or by statute, on 
the requisition of the legislative assemblies, to issue writs of elec- 
tion to fill vacancies occurring therein. This function of the 
executive, and others, with which it is invested, in aid of the legis- 
lative, in the matter of adjournment, prorogation, or dissolution, are 
more appropriately noticed elsewhere. 



CHAPTER FIFTH. 

or VACANCIES, AND ELECTIONS TO FELL THEM. 

452. Vacancies may occur in a legislative body, in consequence 
of the death, removal, refusal to qualify, resignation, expulsion, or 
disqualification of the members, or of their return or election being 
vacated by the assembly ; and, as it is of the highest importance, 
both to the immediate constituency, and to the whole State, that 
the representative body should at aU times be complete and entire, 
it is essential, that there should somewhere exist a power to take 
the necessary steps for the filling of such vacancies. 

453. In England, the house of commons has always regarded 
the right of determining upon the existence of vacancies among its 
members, and of taking measures to fill them, as essential to its 
fi-ee and independent existence ; and has consequently asserted and 
maintained it as a most important and undoubted privilege, resting 
upon the same foundation with the right of determining upon the 
elections and returns of its members. 

454. When, therefore, the house has determined that a vacancy 
exists, the practice is for the speaker, by the order of the house, to 
send his warrant to the clerk of the crown in chancery, directing 
him to issue a writ to the proper officers, requiring them to proceed 
to a new election, for the county, borough, or cit}^, which, by means 
of the vacancy, is deprived, either whoUy, or in part, of its repre- 



Chap. V.] vacancies. 187 

sentation. The \^Tit is accordingly issued, an election takes 
place, and the person elected is returned, in the manner already 
described.! 

455. This mode of proceeding, being solely in virtue of the 
authority of the house, cannot of course take place at any other 
time than during a session. In regard to vacancies occurring in a 
recess, the speaker is authorized by statute (24 Geo. III. c. 26) to 
issue his warrant for a new wn-it of election, upon the existence of 
the vacancy being certified to him, by two of the members, and 
notice of it being previously published by him in the London Ga- 
zette ; and, in order to secure the filling of aU such vacancies, the 
speaker is also authorized by statute to appoint certain members to 
issue the warrant, in case of his death, vacation of his seat, or his 
absence from the realm. The vacancies, which may thus be filled, 
are those only which are occasioned by the death or bankruptcy of 
members, or from their being elevated to the peerage. 

456. In determining upon the existence of a vacancy, the house 
acts in its judicial capacity ; sometimes instituting a previous in- 
quiry, where the law or the fact is doubtful ; but proceeding at 
once if no question is made as to either. If, for example, the death 
of a member, or his elevation to the peerage, is notorious, the house 
proceeds at once to order the speaker to issue his warrant for a new 
WT-it of election. If upon the motion being made, there appears to 
be any doubt concerning the fact, supposed to create the vacancy, 
the order is deferred until the house is in possession of more certain 
information. If, after the issuing of the wait, it is discovered that 
the house was misinformed, the course is to direct the speaker to 
issue his warrant for a supersedeas of the writ. In the case of va- 
cancies occurring in the recess, the proceedings must, of course, be 
subject to the subsequent revision of the house.^ 

457. In this country, writs of election to fill vacancies are either 
issued directly by the assemblies themselves, or, on their authority, 
by the gpvernor. But there are various constitutional^ and statu- 

1 Hatsell, II. 245, note. It is a bi-eacli of ery of the writ was ordered to forbear deliver- 
privilege, and punishable as such, to delay the ing it until further directions. The member 
delivery of such a writ. Hans. (1) IX. 974. proved to be alive, and a writ of supersedeas 

2 In 1765, a new writ of election was or- was accordingly issued a few days afterwards, 
dered, for Devizes, in the room of a member, s jf jg expressly provided in some of the 
who was said to be deceased. The next day, constitutions, that members elected to fill va- 
further information being received, which cancies shall hold their offices only for the 
made it doubtful, whether the member was unexpired term; but this can hardly be neces- 
dead, the messenger intrusted with the deliv- sary except as a matter of precaution. 



188 LEGISLATIVE ASSEMBLIES. [PaRT II. 

tory provisions, relating to the filling of vacancies, which, in some 
States, supersede, — in others, extend, — and, in others again, are 
subsidiary to, — the principle which has just been stated, namely, 
that it is the right of a legislative assembly to determine upon the 
existence of vacancies among its members and to talve measui'es to 
fill them. Some of these provisions relate to the manner in which 
vacancies are to be filled ; others to the preliminary measures to be 
taken for the purpose. The most important require to be briefly 
noticed ; so far only, however, as they are found in the various con- 
stitutions. 

458. In the States of Massachusetts, Maine, and New Hamp» 
shire, if the full number of senators is not elected at the general 
election, the vacancies are filled, on the meeting of the legisla- 
ture, by the joint ballot of the representatives and such senators 
as are elected, from among the persons voted for and not elected 
by the electors ; and, in the same manner, all vacancies afterwards 
occurring in the senate are to be filled. In these States, therefore, 
the principle of parliamentary law^, ^vhich has just been stated, 
is so far superseded by constitutional provisions, as relates to fill- 
ing vacancies in the senate, but not as to the determination of the 
existence of those vacancies. 

459. In all the other States, and in the second branch of the leg- 
islatm-e, in the States just mentioned, vacancies are filled in the 
same manner as the elections are originally made ; in some of them 
in virtue of the principle alluded to ; and, in others, in virtue of 
constitutional or legal regulations touching the existence of vacan- 
cies and elections to fill them. 

460. Where the constitution is silent on the subject, or where the 
provision is general, that aU intermediate vacancies shaU be filled ; or 
where the constitution provides for the regulation by law, in what 
manner and by whom writs of election shall be issued to fill vacan- 
cies ; in all these cases, the matter may be regulated by law ; but, 
if not so, the assembly, in which a vacancy occurs, whether before 
or after the sitting commences, or, in the recess, may, while in 
session, issue a precept or take the proper order for an election ; but 
whether the electors, if the vacancy occm-s before the meeting of 
the assembly or in a recess, or the assembly refuses to issue a 
precept, may, of themselves, proceed to an election, when the 
natm-e of the constituency will admit of it, is a question not with- 
out difficulty. 



Chap. V.] vacancies. 189 

461. "Where the constitution contains a general provision, that 
when vacancies occur in either branch, the governor shall issue 
writs of election, the legislature may undoubtedly regulate the 
exercise of this power, by law ; but if no such regulation is made, 
it will be the duty of the governor, when the legislature is in ses- 
sion, to issue writs of election, on being officially notified of the 
existence of a vacancy, by the body in which it occurs ; and, at 
other times, if thereunto authorized by constitution or law, to act in 
the matter upon his own judgment and discretion, both in regard 
to the existence of a vacancy, and the necessity or expediency 
of filling it, subject, of course, to the revision of the legislative 
body. 

462. Where the constitutional provision on this subject is, that 
when vacancies occur, the presiding officer shaU issue writs of elec- 
tion to fill them, provision may doubtless be made by law, as in 
reference to the house of commons, for the issuing of writs of elec- 
tion in the recess of the legislature. If there is no such provision, 
vacancies occurring in the recess cannot be filled, inasmuch as the 
constitutional provision alluded to can only be considered as de- 
claratory of the ordinary principle of parliamentary law. 

468. In several of the States, writs to fiU vacancies are to be 
issued by the presiding officers, during the session of the legisla- 
ture ; at other times, by the governor. 

464. By whatever authority, however, or in whatever manner, 
writs of election are issued, as well as when the electors proceed to 
an election of themselves, for the purpose of filling vacancies, the 
proceedings are necessarily subject to the revision of the assembly 
itself; by whom, both the existence of the vacancy, and the validity 
of the election to fiU it, are to be judged of, when the person elected 
presents himself to take his seat ; and, it is supposed, generally, that 
whatever constitutional provisions there may be, in any State, on 
this subject, writs of election to fill vacancies may be further regu- 
lated by law, provided only that such regulations are consistent 
with the constitution, and do not infringe the great principle of 
parliamentary law above stated. 

465. Having thus considered of the authority, and of the neces- 
sary measures to be taken, to fiU vacancies, it now remains to con- 
sider in what manner, and when, they occur ; but, before proceeding 
to examine the subject in detail, it will be proper to point out a 
difference between the political law of England, and of this coun- 
try, in reference to the right of a member to renounce his election 



190 LEGISLATIVE ASSEMBLIES. [PaRT II. 

or to resign his seat. In England, it is an established principle, 
that every person, who is constitutionally eligible to the house of 
commons, may be elected agamst his own consent, and conti-ary to 
his desire, and, if lawfully chosen, cannot refuse the place ; ^ because, 
as it is said, " The country and the commonwealth have such an 
interest in every man, that when by lawful election he is appointed 
to this pubhc ser^-ice, he cannot by any unwillingness or refusal of 
his own, make himself mcapable ; for that were to prefer the ^viB. 
or contentment of a private man before the desire and satisfaction 
of the whole countiy, and a ready way to put by the sufficientest 
men, who are commonly those who least endeavor to obtain the 
place." ^ 

466. For the same reason, that one duly elected cannot renounce 
his election, so, after havmg been qualihed and taken his seat, he 
cannot resign his office. But this principle is rendered inoperative 
by a proceeding, which has been introduced for the purpose, the 
legal effect of wMch is to vacate the seat. The statute, 6 Anne, 
ch. 7, provides, that if any member shall accept of any office of 
profit from the crown, his election shall thereupon become void, and 
a WTrit shah issue for a ne^v election, as if he were naturally dead. 
The practice alluded to is to obtain some office, corresponding to 
the description in the statute, as an office of profit under the crowm, 
which consequently vacates the seat. Certain offices are made use 
of for this purpose, which, though in a technical sense offices of 
profit, have nevertheless become in process of time merely noixdnal, 
and .are conferred by the croA^m upon any member Vk*ho desires to 
obtain them in order to vacate his seat. The offices of steward or 
bafiifF of the three Chiltern Hundreds, and of the manors of East 
Hendi-ed and North-Stead, are of this description. "\Mien any 
member wishes to vacate his seat in the house of commons, he 
signifies his deshe to the proper officers of the government to be 
appointed to one of these offices. The appointment being con- 
ferred accordmgly, — and in ordinary cases it is not refused, — the 
member immediately notifies the speaker that his seat has thereby 
become vacant, and a writ is ordered for a new election. The pur- 
pose of the appointment being thus effected, the office is forthmth 



^ It is hardly necessary to observe, that, or resign his office as such, and all other 
even in England, this principle prevails only officers may resign their offices at pleasure, 
■with regard to members of the house of com- - Glanville, 101; Gomm. Jour. I. 724; Same, 
mens; the speaker of that body may refuse 201; Fourth Institute, 49; Male, 63; May, 

435. 



<~^HAP. v.] VACANCIES. 191 

resigned, to be conferred on the next member, who desires to make 
use of it for the same purpose.^ This proceeding is alike effectual 
before and after a member has been qualified. 

467. There are other indirect methods, also, of renouncing an 
election, or of refusing to serve in parliament. A member elect 
may refuse or decline to take the oaths,'^ in which case he must be 
discharged from being a member ; but, in such a case, he may sub- 
ject himself to punishment, as for a contempt, or to be discharged 
with some degree of obloquy, according to his motives and con- 
duct.'^ So a member may refuse or decline to give in a particular 
of his qualification as to property, in w^hich case, he will be dis- 
charged.^ 

468. In this country, though some traces of the principle, that 
a member cannot renounce his election or resign his office, may 
still be found in the laws and usages of some of the older States, it 
seems now to be taken for granted, and to be considered as an ad- 
mitted and established principle, that no one can be compelled to 
serve in a legislative assembly, against his will ; and, consequently, 
that any one being elected may decline to accept the office ; but 
whether having been elected and taken his seat, he may resign it at 
his pleasure, and without the consent of the assembly of which he 
is a member, may admit of some question, though this consent is 
ahvays implied, unless there is some expression to the contrary. 

469. Vacancies may occur, before the meeting of the assembly, 
by members chosen thereto declining to accept the office ; after the 
meeting, by their declining to take the oaths or complying with the 
other conditions, if any, requisite to entitle them to sit and vote ; 
after the organization, by resignation, expulsion, or vacation of the 
election or return ; and either after or before, by death, disqualifica- 
tion, or acceptance of a disqualifying office or employment. If the 

1 May, 435; Hatsell, II. 55. heard in support of his claim, but the house 

* Douglass, I. 283. resolved that he was not entitled to sit or vote, 

3 Soon after the revolution, in 1688, two unless he took the oath of supremacy; and, 

persons returned as members refused to take persisting in his refusal, a writ was issued for 

the oaths, and were discharged; a third, who a new election. 

appears to have equivocated in his statements, * This was the course adopted by Mr. 

was committed to the tower for contempt. Southey, in 1826. Being elected a member, 

Comm. Jour. X. 131, 138. A more recent case during his absence from the country, on his 

is that of Mr. O'Connell, in 1830, (Comm. return, he addressed a letter to the speaker, in 

Jour. LXXXIV. 303, 311, 314, 325,) who de- which he stated for the infonnation of the 

clined to take the oath of supremacy, and house, that he did not possess the qualifica- 

claimed to be admitted on taking the oath in tion of estate required by law. A new elec- 

the Roman Catholic Relief Act, which had not tion was accordingly ordered. Comm. Jour 

then come into operation. Mr. O'Connell was LXXXIV. 28. 



192 LEGISLATIVE ASSEMBLIES. - [PaRT II 

fact, which is supposed to create a vacancy occurs while the assem- 
bly is sitting, the existence of the vacancy must be judicially ascer- 
tained and declared, before measures can be taken to fill it. If it 
occm-s before the sitting or in a recess, and the new election takes 
place without the previous authority of the assembly, the existence 
of a vacancy must be determined upon when the member elected 
presents himself to take his seat. 

470. Members", who are returned to fill vacancies, or Vv'ho first 
take their seats, after the assembly has commenced its sitting, usu- 
ally cause their certificates of election to be presented to the assem- 
bly by some member, and are then introduced, if there is no objec- 
tion, and are qualified and take their seats. If objection is made, 
or the return is questioned, the assembly takes such action in the 
matter as it may think proper, before the member is allowed to 
take his seat. Such members are entitled to take seats, and to 
'claim and exercise the privileges of members, in the assembly, 
whether a quorum is present therein or not, but they cannot be 
qualified, by taking the necessary oa,ths, until a quorum is present.^ 
The qualification of newly returned members is a question of privi- 
lege, which may be brought forward at any time,^ even when a 
member is speaking, who may be interrupted for the purpose,'^ and 
will supersede all other business until it is disposed of. A peti- 
tioner, who prevails in a controverted election, and is adjudged to 
have been duly elected, is introduced, or is present, and takes his 
seat in the same manner. Where the qualification does not take 
place in the assembly, bat elsewhere, as, in Massachusetts, before 
the governor and council, the assembly appoints a committee to 
accompany the member to the proper authority to be qualified; 
and upon the return and report of the committee the member takes 
his seat in the house. A remark or tw"o, with reference to some of 
the principal modes, in which a vacancy may occur, and with refer- 
ence to vacancies, in the congress of the United States, will con- 
clude the subject of vacancies. 



Section 1. Eefusal to Accept. 

471. A person, elected a member, who is unwiUing to serve in 
that capacity, may, on being notified of his election, refuse to 
accept the office. But the local laws, relative to elections, are so 

1 J. of H. III. 80, 400; but see J. of S. III. - Cong. Globe, X. 349, 350. 
411, and ante, 366. s Cong. Globe, XIU. 223. 



Chap. V.] vacancies. 193 

different in different States, that it can only be remarked in general 
of a refusal to accept, that it should be signified to the electors 
themselves, or to then- authorized officers, or to the persons, if any, 
whose duty it is by law to call meetings for the new election ; pro- 
vided the vacancy can constitutionally and legally be filled before 
the meeting of the assembly ; but, if there is no provision by law 
for that purpose, or if the determination to dechne the office is not 
formed until it is too late for a new election, the notice of non- 
acceptance can only be given to the assembly itself, on its meeting. 

Section II. Refusal to Qualify. 

472. One, who is returned a member of a legislative assembly, 
and assumes a seat as such, is bound to take the oaths required of 
him, and perform such other acts as may be necessary to quafify 
him, if any, to discharge the duties of his office. If a member elect 
refuses to quafify, he will be discharged from being a member, with 
more or less of obloquy or none at aU according to the circum- 
stances of his case ; but he cannot be expelled, because he cannot 
as yet, discharge the duties of a member.^ 

Section III. Resignation. 

473. After the meeting of the assembly, and the acceptance and 
quafification of the members, any one may, at pleasure, resign his 
office, which wiU, at all events, be effectual, if accepted, unless there 
is some express provision of law or otherwise to the contrary. If a 
member desires to resign while the assembly is in session, his resig- 
nation should be made to the assembly itself; if, afterwards, to the 
officer, if there is one, specially provided and appointed by law 
to receive it; and, if there is no such provision, it would seem, 
that the right of resignation, in such a case, cannot be exercised. 
A resignation takes effect, from the time -when it is accepted, or 
presumed to be so ; or, it may be, when it is received ; or when 
there is a presumption that it has been received. 

Section IV. Expulsion. 

474. The right of a legislative body to expel a member will 

1 The refusal to qualify is expressly men- it. Comm. Jour. X. 131, 138; Same, LXXXIL 
tioned Id some of the constitutions as one of 28; Same. LXXXIV. 303, 311, 314, 325. 
the grounds of a vacancy. See instances of 

17 



194 LEGISLATIVE ASSEMBLIES. [PaRT IL 

come under consideration hereafter, as one of the powers necessarily 
incident to every such body ; it is mentioned here only as one of 
the modes in -which a vacancy may occur. Exptdsion being the 
act of the assembly itself, no other notice or proof of the vacancy 
can of course be necessary. The discharge of a member is the 
same thing as expulsion, in a less ignominious form ; ^ as the latter 
is always, and the former may not be, an adverse proceeding. 



^Section V. ADJUDicATioiir oe a Controverted Return and 

Election. 

475. Another mode, in which vacancies may occur, results from 
a judgment pronounced by the assembly vacating the seat of a mem- 
ber, ^lose election or return is controverted. Where an election, 
having been controverted, is adjudged void, a vacancy is thereby 
created, which, in general, is to be filled by a new election, in virtue 
of a ^vrit or precept issued from the assembly, for that purpose. In 
England, if it appears, in the investigation of an election, that bri- 
bery and corruption have been practised therein, the house some- 
times suspends the issuing of the writ, with a view to fm-ther 
inquiry, and the ultimate disfranchisement of the corrupt constitu- 
ency by an act of parliament.^ In Massachusetts, where no such 
disfranchisement can take place by law, the issuing of a precept for 
a new election has been frequently refused, in the case of an illegal 
election.^ 



Section VI. Death. 

476. When a member elect dies before the meeting of the assem- 
bly, official notice of the fact must be taken by the person or per- 
sons, (if there is any,) whose duty it is by law to do so, and 
information given by him or them to the proper authorities, in order 
that a new election may take place ; but if the law is silent on the 
subject, the electors may in some cases proceed of themselves to 
fiU the vacancy, where the nature of the constituency will admit of 
such a proceeding. K the subject is neither regulated by la^v, nor 
any power exists on the part of the electors to proceed, nothing can 
be done to fiU the vacancy until the meeting of the assembly.^ 

1 Post, 475, 4V8. * Selectmen of Sherh me, Petitioners Cnsb 

2 May, 466. ing, S. & J., 342. 
« Gushing, S. & J., 67, 146, 399, 422, 518. 



Chap. V.] vacancies. 195 

Where the death of a member occurs, either before or after the 
meeting of the assembly, or during a recess, no other proof of the 
fact is required, than the statement of a member in his place. 



Section VII. Disqualification. 

477. Whenever a member ceases to possess those qualifications, 
which are in their nature continuing, or which members are ex- 
pressly required to possess during their continuance in office, — as, 
for example, when a member removes from the State or other local 
constituency in which he is required to continue to reside whilst in 
office, — the seat of such member is thereby liable to be adjudged 
vacant, upon the fact of such disqualification being brought to the 
knowledge of the assembly. To the disquafifications of this kind, 
may be added those which result from the commission of some 
crime, which would render the member ineligible, or from some 
gross official or other misconduct, in consequence of which he is 
expelled, or discharged from being a member. In all these cases, 
unless there is some express provision of law, by which the sub- 
ject is regulated, the fact of disqualification can only be inquired 
into and decided upon by the assembly itself. 



Section VIII. Acceptance of Disqualifying or Incompatible 

Offices. 

478. The distinction has already been explained between those 
offices or employments, the possession of which at the time of the 
election renders a person ineligible, and those the functions of 
which are merely incompatible with the functions of a member; 
the former avoiding the election ; the latter only preventing the 
person elected from exercising the functions of a member until they 
are removed. When, however, a member has once been duly 
elected and taken his seat, this distinction no longer exists ; the 
acceptance of disqualifying and incompatible offices being equally 
effectual to create a vacancy. 

479. The only practical question, in cases of this Idnd, usually 
relates to the time when the acceptance of an office takes place. 
The subject is sometimes regulated by law, but where this is not 
the case, it may be considered as a rule, founded in the reason of 
the thing, and corresponding with the practice, so far as it is known, 
of all our legislative assemblies, that, in order to vacate the seat of 



196 LEGISLATIVE ASSEMBLIES. [PaET II. 

a member, by the acceptance of a disqualifying or incompatible 
office, the election or appointment thereto alone is not sufficient, 
but the member must either have signified his acceptance of the 
office in a formal manner, or have done what is incumbent on him 
to qualify himself to discharge its duties, or have actually entered 
upon their discharge. In cases of this kind, the existence of the 
vacancy must be declared by the assembly itself. In cases arising 
under this and the preceding section, there is, in fact, no vacancy, 
until it is so declared or implied by the resolution of the assembly 
itself. 



Section IX. Of Vacancies in the Congress of the United 

States. 

480. The congress of the United States being differently consti- 
tuted from all the other legislative bodies in this country, a cor- 
responding difference will be found to exist in tliis respect; the 
senate of the United States representing the people of the 
several States in then* aggregate or municipal capacity, and the 
house of representatives representing the same people as mdi- 
viduals. Vacancies occur in congress in the same ra.anner, and for 
the same causes, as in other legislative bodies ; but the mode of 
filLing them, though in many respects similar, depends wholly upon 
the constitution of the United States. 

481. That instrument, having established the basis of the appor- 
tionment of representatives among the several States, and fixed the 
numbers to which the thhteen States then in the Union were 
respectively entitled, proceeds to declare, that, " When vaceaicies 
happen in the representation from any State, the executive author- 
ity thereof shaU issue \^^:its of election to fill such vacancies." This 
language, though broad enough to include the senate, apphes only, 
it is clear from the context, to vacancies occurring in the house of 
representatives. The constitution also provides, generally, in refer- 
ence to both branches, that unless othervvdse regulated by congress, 
(except as to the place of choosing senators) the times, places, and 
manner of holding elections, shall be prescribed in each State by 
the legislature thereof. 

482. The language being that " when vacancies happen ui the 
representation from any State," the executive thereof shall issue 
writs of election to fill them, it would seem to follow, that where a 
vacancy is of such a nature that it may be created or exist inde- 
pendently of the house itself, the executive of the State may in all 



Chap. V.] vacancies. L97 

cases take official notice of the vacancy, and proceed at once to 
take the proper measures for filling it ; but that where the vacancy 
is of such a nature that it cannot exist or be created without some 
act 1 of the house itself, the executive of a State cannot proceed to 
take measures to fill it, until he receives official notice from the 
house. 

483. I. It will be the duty of the executive of a State, therefore, 
to take official notice of all vacancies which happen when congress 
is not in session, and issue writs to fill them. A refusal to accept 
belongs to this class. 

484. II. The executive of a State may take official notice of a 
vacancy, which occurs during the sitting of congress, provided it is 
of such a nature as not to require any agency of the house to its 
creation or consummation. Thus, the executive of the State to 
which a member belongs may take official notice of his death, 
although congress is then in session, and take measures to fiU the 
vacancy occasioned thereby."^ 

485. III. In regard to vacancies, which are not created or con- 
summated, without some vote or resolution to that effect, on the 
part of the house, although the act or event, from which they result, 
happened when congress was not in session, such vacancies can- 
not be filled, until official notice is given by the house to the 
executive of the State. Vacancies of this description are those 
which result from a refusal to qualify, expulsion, adjudication of a 
controverted election or return, disqualification, or acceptance of a 
disqualifying office. 

486. IV. Ordinarily, when a legislative assembly is not in ses- 
sion, there is no power in being to which a member of such a body 
can resign his office ; but in consequence of the constitutional pro- 
vision above mentioned, respecting the filling of vacancies, it was 
very early decided ^ that the executive of a State, in the recess of 
congress, might receive the resignation of a member, and issue a 
writ of election to fiU the vacancy. 

487. V. It seems also to have been decided,^ that the executive 
of a State might receive the resignation of a member of congress 
while that body was in session, and issue a wiit of election to fill 
the vacancy. But inasmuch as every legislative body has a control 
over its own members, so far as to be competent to prevent them 

1 There need not be any other vote deelar- ^ Case of John F. Mercer, Clarke & Hall, 44; 

ing a vacancy than the official notice of its Case of John Hoc/e, Same, 136. 

sxistence. * Case of Benjamin Edwards, Chrke & Hall, 

3 Cong. Globe, XVH. 339. 92. 

17* 



198 LEGISLATIVE ASSEMBLIES. [PaUT IL 

from divesting themselves of membership at pleasm-e, it may well 
be doubted, whether a member can resign his office, when congress 
is in session, to any other authority than the body of which he is a 
mem-ber. The most common course of proceeding, when a mem- 
ber wishes to resign, while congress is in session, is, for him to 
address a letter to the house, resigning his office, and, at the same 
time another letter to the governor of his State, to inform the latter 
that he has done so. The executive of the State, thereupon, first 
waiting a reasonable time for the resignation to be accepted or 
refused, or, most commonly, perhaps, assuming that it will be 
accepted, proceeds, at once, to take measures to fUl the vacancy. 

488. K the legislature of a State fails to prescribe " the times, 
places, and manner of holding elections " for the choice of repre- 
sentatives in congress, as required by the constitution, the executive 
of the State, in his writ of election, to fill a vacancy, may fix upon 
the time and place for holding the election.^ 

489. The constitution of the United States declares, that the 
senate shall be composed of tAvo senators from each State, chosen 
by the legislatm-e thereof, for six years, and divided into three 
classes, so that one third may be chosen every second year. It 
then proceeds to say: — " and if vacancies happen, by resignation 
or otherA^dse, dming the recess of the legislatm-e of any State, the 
executive thereof may make temporary appointments mitil the next 
meeting of the legislatm-e, which shall then fill such vacancies." 

490. When the senate fijst assembled and organized, mider the 
constitution, the senators present from the States which then con- 
stituted the Union were classed accordingly ; and as new States 
have since been formed and admitted into the Union, their senators 
have been' assigned by lot to two out of the three classes into which 
the senate is divided. The consequence is, that the senators of 
each State are to be elected therein, by the legislatm-es of the same, 
respectively, at regular periods recurring after intervals of six years 
from the expiration of their first senatorial terms of office. Vacan- 
cies, therefore, occurring by the mere lapse of time, are known 
beforehand, and may be provided for by the legislative bodies 
whose duty it is to fill them. They do not fall, properly, under the 
head of vacancies, but rather constitute the regular elections of the 
senate. These elections, by custom, are to be made by the legisla- 
ture, which sits next preceding the expiration of the regular term of 
office of a senator, and for the term of six years. There is nothing 

1 Case of John Eoge, Clarke & Hall, 135. 



Chap. V.] vacancies. 199 

in the constitution to prevent the legislature of a State froin 
anticipating the election of a senator ; but where an election of this 
kind is to be made by the legislature, it appears to devolve, as a 
matter of course, upon that which immediately precedes the occur- 
rence of a vacancy. 

491. The vacancies in the senate of the United States, which 
are mentioned in the extract above quoted from the constitution, 
are not those which take place at regular intervals, but those which 
occur occasionally and irregularly, and which correspond, therefore, 
as to the causes from which they arise, and are subject to the same 
observations, with those which occur in the other branch. Vacan- 
cies in the senate are communicated to, or taken official notice of 
by, the executive of the State, as the head of the government, and 
not as in reference to vacancies occurring in the other branch in 
virtue of any constitutional provision. This subject requires to be 
noticed with relation to three particulars, namely: — First, The 
kind of vacancy ; second, The appointing power ; and, thnd, The 
duration of the appointment. 

492. I. The vacancies alluded to are those which take place 
occasionally and irregularly, and which cannot therefore be fore- 
seen ; such, for example, as those which are occasioned by death, 
resignation, acceptance of an incompatible office, disquahfication, 
or any cause other than mere lapse of time. Vacancies of this 
description are filled only for the remainder of the unexpired term. 

493. II. If the legislature of a State is in session, when a 
vacancy occurs in the office of senator from such State in the 
senate of the United States, the vacancy is to be filled thereby, in 
the same manner as the original appointment was made, for the 
residue of the unexpired term. If the legislature is not in session, 
the vacancy is to be filled temporarily, until the meeting of the 
legislature, by the executive of Ihe State. 

494. III. If the vacancy is filled by the legislature, the appoint- 
ment is made, in all cases, for the unexpired term, if by the 
executive, it is declared to be temporary only, "until the next 
meeting of the legislature," which shall then fill such vacancy. In 
the construction of this provision the following points have been 
held. First, if the legislature, which next meets after the occurrence 
of a vacancy, whether a temporary appointment has been made or 
not, fails to make an election, and adjourns without filling the 
vacancy, the power of the executive to make a temporary appoint- 
ment is at an end. Second, by the terms " next meeting of the 



200 LEGISLATIVE ASSEMBLIES. [PaRT II. 

legislature," is not meant the fii-st or any intermediate day of the 
session; these. terms include the whole period of the session until 
its close, during ^\'hich the vacancy may be filled, and, if not sooner 
superseded by an election, a temporary appointment will last to 
that time. Thu'd, if an executive appointment is superseded by a 
legislative election, the latter takes effect and vacates the former, 
when the acceptance of the latter is officially made known to, or 
may be presumed by the senate. 



CHAPTER SIXTH. 

or THE SESSION, ADJOURXMEXT, PROROGATION, ASSE:\IBLING BY 
PROCLA]\IATION, AND DISSOLUTION OF A LEGISLATIVE ASSEM- 
ELY. 



Sectiox I. Session. 

495. The term of time for which a legislative assembly is elected, 
and dm-ing which it is competent to sit, is usually broken into shorter 
periods, dmmg which it actually sits, ^^hich are called sessions, 
and which are usually (especially the first time an assembly meets) 
appointed by law. A session is the period of time, during which 
both the branches of the legislature sit from day to day, with occa- 
sional intermissions of a day or tv'o at a time, by one or both, until 
the business before them is completed, and the daily sittings are 
brought to a close. This takes place either by lapse of time, or by 
means of w"hat is called a prorogation, or dissolution. In this 
country, a session of a legislative assembly most commonly termi- 
nates by an adjoiurnment A\-ithout day mutually agreed upon. 
The term adjournment, which, in strictness, denotes only a continu- 
ation of the session, is used v^ith us to denote its conclusion. The 
reason for this use of the term undoubtedly is, that an adjourn- 
ment always takes place by the authority of the legislative body 
itself; and, in this country, the executive has no authority, in any 
case, or, at least, \^dthout its consent, to put an end to the session 
of a legislative assembly. 



Chap. VLJ session. 201 

496. The members of a legislative assembly, before its first meet- 
ing, as well as during the intervals of its sitting, have, as we shall 
see hereafter, some necessary privileges as such ; but the assembly 
itself has no authority, and can exercise none, except during a ses- 
sion, and while the assembly is duly organized for the transaction 
of business. So its authority terminates with the session. Its 
officers, as we have seen, are elected, unless it is otherwise declared, 
for the whole term of the legal existence of the assembly itself; 
but unless otherwise extended, all its orders, resolutions, and pro- 
ceedings, which are of a continuous nature, necessarily expire, with 
its own authority, at the end of the session. They may be made 
to extend to and be in force in, the next session of the same body, 
but they cannot be extended, unless they have taken the form of 
laws, beyond the period of its legal existence. Ordinarily, there- 
fore, to be in force in the next session, they must be revived for that 
purpose ; and to be in force in a succeeding assembly, they must 
be renewed in it as original measures. 

497. In parliament, it is customary for both branches, at the 
commencement of each session, to agree to or adopt certain orders, 
which have been found necessary in the transaction of business, 
and which last during the session only. These orders are very 
nearly or quite the same from one session to another. The ses- 
sional orders, which are some of them merely in aihrmance of 
the common parliamentary law, have but very little to do with the 
ordinary proceedings of the house ; which are governed and regu- 
lated, for the most part, by a system of procedure, which constitutes 
the law of the house, without any previous adoption or sanction 
by the house itself. This system consists, in part, of customs and 
usages, which have been handed down, in the practice of both 
houses, from time immemorial, and, in part, of positive regulations, 
which have been made, from time to time, by the two houses, 
respectively, and declared to be standing orders, and which conse- 
quently are binding upon every succeeding house, by the law and 
custom of parUament, un1il they are vacated or rescinded. The 
consequence is, that each house of parliament, as soon as it 
assembles, is provided with a code of rules for the government and 
regulation of its proceedings. 

498. But in this country, every one of the constitutions contains 
a provision, that each legislative assembly thereby established may 
determine the rules of its proceeding. Hence, probably, in con- 
sequence of this constitutional principle, the system of standing 
orders has never been estabhshed in this country ; and no legislative 



202 LEGISLATIVE ASSEMBLIES. [PaET IL 

assembly is here governed, or its proceedings regulated, by any 
other rules and orders than those to which it gives its own consent. 
One of the proceedings, therefore, which takes place at the com- 
mencement of the first session of legislative bodies in this country, 
is the adoption of rules and orders for the regulation of its proceed- 
ings ; and as this adoption of rules would expu-e with the session, 
unless otherA^dse specified, it would require to be renewed at the 
commencement of each succeeding session. 

499. Every parliament is commonly designated by the name and 
year of the reign of the sovereign, by whose authority it is held ; 
and the several sessions, if more than one, into which it is divided, 
by prorogations, and in which it does business, are designated as 
the first, second, etc., of such a parliament. Thus the parhament, 
which first assembled for the despatch of business, on the 22d of 
January, 1801, is knoxsm as The Fu'st Parliament of the United 
Kingdom of Great Britain and Ireland. But this designation is 
merely conventional ; an act of parliament can only be legally de- 
scribed by reference to the name and year of the sovereign, in 
whose reign it is enacted. 

500. The legislative department of the federal government is 
called the congress of the United States ; in the States of Maine, 
Michigan, Wisconsin, California, New York, Texas, and Missis- 
sippi, it is st}ded the legislature ; in Massachusetts and New Hamp- 
shh-e, the general court ; and, in all the other States, the general 
assembly. Li the States of Maine, Massachusetts, Vermont, Ehode 
Island, Connecticut, New York, Georgia, the legislative term for 
members of both branches is one year ; in the States of Florida, 
Wisconsin, and California, it is one year for members of the second 
branch, and two years for those of the other ; m those of New Jer- 
sey, Pennsylvania, and Alabama, it is one year for members of the 
second branch, and three years for those of the other ; in those of 
North Carolina, Tennessee, Ohio, Illinois, and Michigan, it is two 
vears, for members of both branches ; and in the States of Delaware, 
Maryland, Virginia, South Carolina, Mssissippi, Louisiana, Ken- 
tucky, Lidiana, lUinois, Missomi, Arkansas, Texas, and Iowa, it is 
two years for the second branch, and fom- years for members of the 
other. In the following States the regular meeting of the legisla- 
ture is appointed to take place biennially, namely : — Delaware, 
Maryland, Virginia, North Carolina, Mississippi, Kentucky, Ohio, 
Indiana, Illinois, Michigan, Missouri, Arkansas, Texas, and Iowa ; 
hi aU the other States it is annual ; and in Rhode Island the legis- 
latm-e is appointed to meet regularly twice a year. Representatives 



Chap. VI.] session. 203 

in the congress of the United States, are also elected for two years 
senators for six years ; and Ihe session of congress is annual. 

501. In the congress of the United States, and in the legislatures 
of several of the States, the members of the first branch are chosen 
for longer periods than those of the other, and are divided into two 
or more classes, the official term of one of which expires at the same 
time with that of the second branch. The members of the senate 
of the United States are chosen for six years, and are divided into 
three classes, one of which goes out of office and is renewed every 
h^TQ years ; the members of the senate in the States of Florida, 
Wisconsin, and California, are chosen for two years, and divided 
into two classes, one of which goes out of office and is renewed 
every year; in the States of New Jersey, Pennsylvania, and Ala- 
bama, the members of the senate are chosen for three years, and 
divided into three classes, one of which goes out of office and is 
renewed every year; in the. States of Maryland, Virginia, South 
Carolina, Louisiana, Mississippi, Kentucky, Indiana, Illinois, Iowa, 
Texas, and Missouri, the members of the senate are chosen for 
four years each and are divided into two classes, one of which goes 
out of office every two years. In Delaware and Arkansas, the 
members of the senate are chosen for four years, but are not divided 
into classes ; so that in these States, the legislative term of mem- 
bers of the senate is double that of the members of the other branch. 
In all these cases, as both branches are necessary to constitute a 
legislature, the period of the duration of that department of the 
government is necessarily determined by the official term of the 
second branch, though the members of the first are chosen for longer 
periods, that is, for two or more successive legislatures. 

502. Each successive legislature either receives its designation 
from the year or years for which it is held, or according to its num- 
ber commencing with the organization of the government of which 
it is a part ; thus, the successive congresses of the United States 
are known as the first, second, etc. ; and the successive legislatures 
of the several States as the first, second, etc., general assembly, or 
as the legislature or general court of such a State for such a year. 
The sessions held by each, if more than one, are numbered con- 
secutively and designated by their numbers. 

503. In order to determine what kind of a meeting of a legisla- 
tive assembly in this country will constitute a session, it seems 
necessary to consider its commencement, its proceedings, and its 
termination. Li regard to its commencement, there can be no doubt, 
when an assembly comes together, at the time required by law for 



204 LEGISLATIVE ASSEMBLIES. [PaRT IL 

the commencement of the regular session ; or in pursuance of an 
executive proclamation, for an extraordinary session ; or in pursu- 
ance of an adjournment by both branches, for the purpose of closing 
one session and commencing another ; that in all these cases, there 
is the commencement of a session. As to the proceedings, it was 
formerly held in England, that, in order to constitute a session of 
parliament, it was necessary either that some judgment should be 
given, by the house of lords as a court of law, or that a bill should 
be passed by both houses, and receive the royal assent ; and that 
otherwdse the meeting would be only a convention and not a ses- 
sion. Such proceedings, however, do not now seem to be requisite ; 
but if parliament assembles and sits, and may proceed with busi- 
ness, though it does not in fact transact any, the proceedings will 
suffice for a session. The termination of the meeting gives rise to 
some question. The only termination of the sitting of parliament, 
which win constitute a session, is undoubtedly a prorogation, or a 
dissolution either by royal authority, or by lapse of time ; no mere 
adjournment, even in obedience to the king's command, being suffi- 
cient for the purpose. "When a prorogation takes place, it is im- 
material for how long or short a time it may be ; a prorogation for 
a single day being as effectual as one for a longer period, to make 
the meeting so terminated a session. In our legislative assemblies, 
a prorogation where that mode of proceeding is in use, or a disso- 
lution by lapse of time, "wdll have the same effect to constitute a 
session as in England. But there are many, indeed the greater part, 
of the States, in which prorogation is not a constitutional proceed- 
ing, but, in which, every termination of the sitting of the legislative 
bodies is denominated an adjournment. In all these States, there 
can be no doubt, that an adjournment ^^dthout day wUl be a suffi- 
cient termination of the session ; but, whether an adjournment from 
one day to another, however distant, wdll constitute a session, may, 
perhaps, be doubtful. According to the law of parliament, it would 
not; and the same rule may be admitted here, unless the adjourn- 
ment is accompanied with a declaration, that it is for the purpose 
of closing the session, or is attended with circumstances of equiva- 
lent character ; in which case, the session would doubtless be con- 
sidered as terminated. 

504. The congress of the United States furnishes a good example 
of both modes, in which the session of a legislative assembly in this 
country terminates, usually by lapse of time, or by mutual agree- 
ment to adjom-n. The members of the second branch being pre- 
viously chosen, in every alternate year, hold their offices for tw^o 



Chap. VI.] session. 205 

years from the fourth of March thence next ensuing ; and congress 
is required, by the constitution, to meet every year on the first 
Monday of December, unless a different day is appointed by law. 
Each congress, therefore, usually has two sessions, commencing on 
the first Monday of December annually. The first session termi- 
nates by agreement of the two branches; the second by lapse of 
time. 

505. "When the session of congress terminates, with the functions 
of its members, on the day preceding the fourth of March, it seems 
to have been held, that the sitting of that day might be prolonged, 
at pleasure, beyond the natural day, without losing its appropriate 
designation of a sitting on that day, and be, therefore, within the ofii- 
cial term of the members, provided it should not be extended beyond 
twelve o'clock at noon,^ on the fourth of March, at which time the 
functions of the members, and of course the legal existence of con- 
gress, would terminate. 

506. When a session of congress terminates by mutual agree- 
ment, the day being agreed upon beforehand, by a joint- resolution, 
when that day arrives, and the two branches have done what busi- 
ness they intend doing, they unite in a message to the president, to 
inform him, that, unless he has some further communication to 
make to them, they propose to bring the session to a close. The 
president returning for answer that he has no further communica- 
tion to make to them, the two branches, first giving each other no- 
tice, then adjourn without day, on motion. If the two houses have 
come to a previous resolution, that they shall be adjom-ned by their 
respective presiding officers at a particular point of time, on the day 
fixed, for the adjournment, when that time arrives, the business on 
hand, whatever it may be, is then arrested, and the house declared 
to be adjourned without day. 

507. The sitting of a legislative assembly, from day to day, 
begun on the day fixed by law, whether a quorum assembles, or the 
assembly is organized on that day, or not, and brought to a close 
by lapse of time, or by mutual agreement, constitutes a session for 
all legal or parhamentary purposes. 

508. During the session of a legislative assembly, the person or 
persons exercising the executive authority should be of convenient 
access to either branch ; as in Massachusetts, where the executive 
authority is in the governor and council, who are always sitting, in 
the State House, while the legislature is in session ; and this con- 

1 Cong. Globe, XXIII. 787. 
18 



206 LEGISLATIVE ASSEMBLIES. [PaRT IL 

venient access to the executive has been considered so important in 
some of the States, as to be expressly provided for in then* constitu- 
tions. 



Section II. ADJOimisrMEisrT. 

509. A legislative assembly, having once met, on the day ap- 
pointed for its assembling, continues to meet every day, as a matter 
of course, except on Sundays and such other days (Christmas and 
Good- Friday, for example) as are not considered legislative days, 
until it is prorogued, or otherwise adjourned, or dissolved 'by lapse 
of time. By special order, however, the assembly may sit on Sun- 
days and other non-legislative days. " The parliament," says 
Whitelocke,^ " is so constant in their daily sitting, that every time 
when the house of commons riseth, the speaker pronounceth, that 
the house adjourns until the next morning; and so on Saturdays 
the house adjourns itself until Monday. The word adjourn is from 
the French word jour ; and to adjourn is to put off from one day 
to another." 

510. When therefore a legislative assembly simply adjourns, or 
rises, without any previous order or resolution on the subject, its sit- 
ting is to be resumed on the next legislative day, whenever a quo- 
rum is assembled in the usual place of sitting. It is the practice, 
however, in this country, to fix a time for the assembling on each 
day, by a standing order ; so that when an adjournment takes place, 
without any previous resolution or special order, on the subject, the 
sitting is resumed at that hour on the next day. 

511. A legislative assembly may also adjourn to a day beyond 
the next regular sitting day ; but, in order to prevent the inconven- 
ience and delay, which would result from the adjom-nment of one 
branch for a considerable period, without the consent and knowl- 
edge of the other, it is provided in nearly all our constitutions, that 
neither branch shall adjourn for more than a certain number of 
days, as, for example, two or three, ^vithout the consent of the other. 
The days intended by this prohibition must of course be days on 
which the other branch might sit, that is, legislative days, and others 
which might be made so ; and, therefore, an adjournment fi'om Fri- 
day to the next Tuesday would be for three days ; Sunday, though 
not an ordinary sitting day, being one on ^vhich either branch may 
sit and transact business, if it should think proper. 

512. For the reasons given in the preceding paragraph, it is also 
provided in many of the constitutions that neither branch, without 

I Whitelocke, I. 219. 



Chap. VI.] prorogation. 207 

the consent of the other, shall adjourn to any other place than that 
in which the two branches shall then be sitting. 

513. The prohibitions above mentioned are restrictions upon the 
proceeding of one branch independently, and without the consent 
of the other ; if the two branches agree upon the time and place, 
they may adjourn for any number of days, and to any place, that 
they may think proper or convenient. 

514. An adjournment, being in strictness of language nothing 
more than a continuation of one branch of the assembly from day 
to day, by its own act, either independently of, or in concm-rence 
with, a similar act of the other branch, the parliamentary effect of it, 
as regards the business introduced and pending at the time it takes 
place, is, that every proceeding remains entire, and, at the meeting 
after the recess, may be taken up in the state, and at the period, or 
stage, in which it was left.^ 

515. A temporary suspension of business sometimes takes place 
in the course of the daily sitting, without an adjournment ; which 
may either occur by the general consent and acquiescence of the 
assembly, or by motion and vote for the purpose. In the latter case, 
the suspension is usually denominated a recess. When the time 
for which it was taken has expired, the business of the day is to be 
resumed precisely where it was suspended. A motion for a recess 
has nothing of the peculiar character, which belongs to the motion 
to adjourn, or is sometimes given to the latter in our legislative 
assemblies.^ 



Section III. Prorogation. 

516. When the business of a legislative body is completed, but 
the time for its dissolution has not arrived, and the sittings of both 
branches are suspended, by a joint act, to be resumed at a future 
time, this suspension is properly denominated a prorogation. In 
England, a prorogation can only take place by the authority of the 
king ; in this country, with certain exceptions and limitations, only 
by the act either concurrent or joint, of the two branches of the 
legislature. All the constitutions, though they differ as to the mode, 
concur in witlidrawing from the executive department the power to 
terminate at pleasure the existence of the legislative. The lan- 

1 Hatsell, II. 337. The effect of an adjourn- « J. of H. 29th Cong. 1st Sess. 357 ; J. of H 
ment, to supersede a motion, will be noticed 29th Cong. 2nd Sess. 343 ; J. of H. 32nd Cong 
hereafter. 2nd Sess. 889; Cong. Globe, VIII, 361. 



208 LEGISLATIVE ASSEMBLIES. [PaRT IL 

gxiage, frequently made use of to express this idea, is, that " Each 
house shall sit upon its o^vn adjournment." 

517. In Massachusetts alone, is the form of a prorogation still 
preserved. By the constitution of that State, it is made the duty 
of the governor, ^A^th the ad^dce and consent of the council, to 
prorogue the general court, ^vhen in session, to any time the t\vo 
houses shall desire. It also further provides, that du_rmg the recess, 
the governor may prorogue it from time to time, not exceeding 
ninety days at any one time. This last proAasion is the only rem- 
nant left in the United States, of the absolute control of the execu- 
tive over the legislative department. Li this State, also, the gov- 
ernor is authorized, in case of a disagreement bet\veen the two 
houses, as to the necessity, expediency, or time of adjournment, or 
prorogation, to adjourn or prorogue them, at his pleasure, not ex- 
ceeding ninety days at any one time. 

518. Li all the other legislatures, with the exception of that of 
North Carolina, a prorogation takes place by the concurrent act of 
the tvv'o branches, vvi-thout any interference on the part of the execu- 
tive, unless the t^vo branches disagree ; in ^diich case the governor 
or president, except in the States of Yu-ginia, Ne-u^ York, Tennessee, 
New Jersey, Maryland, Indiana, Michigan, Wisconsin, California, 
and ]\Iissouri, is authorized to adjourn or prorogue them to such 
time as he may thinli proper, not exceeding the period mentioned 
in each particular constitution, nor, of course, beyond the period at 
which the functions of the legislative body expu-e. Li North Caro- 
lina, the two branches prorogue themselves to such futui'e day and 
pla.ce as they may think proper, by joint ballot. 

519. A prorogation, as akeady remarked, is the termination for 
the time being, of the functions of the legislative body, as an ad- 
journment is a continuation from day to day, of the functions of 
each of its branches. In whichever of the T\-ays above mentioned, 
this termination in fact takes place, or by whatever name it may 
be called, the legal effect of it is to conclude the session ; by which 
all bills and other proceedings of a legislative character,^ depending 
in either branch, in whatever state they are at the time, are entirely 
put an end to, and must be instituted again, in the next session 

1 In England the house of lords is a court The officers of the assembly being chosen 

of errors in the last resort, which is the case for the term of office of the members, it is 

also -n-ith the senatorial branch in some of the scarcely necessary to add, that the organiza^ 

States. Where this is the character of a tion of the assembly remains notwithstanding 

legislative body, judiciary cases depending any prorogation, 
therein are not affected by a prorogation. 
The same is true in regard to impeachments. 



Chap. VL] assembling by proclamation. 209 

precisely as if they had never been begun.^ This rule applies to 
every proceeding instituted by, or depending for its existence upon, 
any order of the assembly. 



Section IV. Assembling by Proclamation. 

520. There are two kinds of contingencies mentioned in the 
several constitutions, on the occasion of which it is made the duty 
of the executive to intervene in the calling of a meeting of the 
legislature ; and wherever this power is exercised, it is of course to 
be effected by means of an official proclamation, issued and pro- 
mulgated in the usual manner, by the executive authority. The 
occasions, on which this interference takes place are, first, to con- 
vene the legislature on extraordinary occasions, and second, to 
change the place of meeting. 

521. The ordinaiy business of a legislature does not require it to 
sit uninterruptedly, but only to hold one or more regular sessions, 
during the period for which it is elected; but, as extraordinary 
occasions may occur, on which it is absolutely necessary, or, at any 
rate, extremely convenient, that the legislature should act, or advise, 
it is provided, in all the constitutions, except those of New Hamp- 
shire, North Carolina, and Indiana, that the legislature may be 
convened, on extraordinary occasions, by the executive authority. 
The constitutions of the States last named are silent on this sub- 
ject ; that of North Carolina, however, declares that the governor 
may exercise all the executive powers of government, limited 
and restrained by the constitution and laws ; and, by that of Vir- 
ginia, the governor is required to convene the legislature, not only 
when " in his opinion the interest of the commonwealth may re- 
quire it," but also, " on application of a majority of the members 
of both houses." 

522. The executive, on the assembling of the legislature by proc- 
lamation, would, of course, state to them the causes for which they 
were convened. In Tennessee, Illinois, and Iowa, he is required to 
do so by constitution; and in the two former the legislature is 
expressly prohibited from entering upon any other business than 
that for which it is thus specially convened. If it were not for this 
prohibition, the legislature, notwithstanding they were called 

1 Hatsell, II. 335. The twenty-second rule joint resolutions, and reports, from one ses- 
of the house of representatives of the United sion to another of the same congress. 
States provides for the continuance of bills, 

18* 



210 LEGISLATIYE ASSEMBLIES. [PaUT IL 

together for a special purpose, might proceed upon any businesa 
they should think proper. 

523. The constitutions of Florida, Alabama, Mississippi, Louis- 
iana, Kentucky, Arkansas, and Wisconsiii, T\'hile they provide that 
the governor on extraordinary occasions, may call meetings of the 
legislature, at the place appointed by law for their assembling, pro- 
vide, also, that if that place has become unsafe and improper by 
reason of an enemy or disease, the session may be called at a 
different place. In Texas, the place may be changed, if the ordi- 
nary place of meeting is in the actual possession of a public enemy. 

524. The only other purpose, for which it is the duty of 
the executive to interfere in the calling of a meeting of the 
legislature, is to effect a change in the place of its assembling. 
The place for the sitting of the legislature is alv^^ays prescribed 
beforehand, either by the constitution, or by the laws ; but, as cir- 
cumstances may occur, to make it necessary or convenient to 
change the place of assembling, authority is given to the governor 
by the constitutions of Maine, Massachusetts, New Hampshire, 
Rhode Island, Connecticut, South Carolina, Indiana, and Maryland, 
and to the president of the United States by an act of congress, to 
convene the legislature next to be holden at any time, at some other 
than the regular place of assembling, pro^dded he should deem it 
necessary to do so, in order to presers^e the health, lives, or freedom 
of the members. A change in the place of meeting of the congress 
of the United States and of the legislatures of Massachusetts, Con- 
necticut, and New Hampshire, may take place, on account of any 
infectious distemper prevaihng in the place where the legislature is 
to convene, or any cause happening whereby danger may arise to 
the health or hves of the members from their attendance ; in Mary- 
land, to authorize this change there must be danger " from the pres- 
ence of an enemy or from any other cause ; " in Rhode Island it 
may take place, " in case of danger from the prevalence of epidemic 
or contagious disease," or " for other urgent reasons ; " in Indiana, 
" should the seat of government become dangerous from disease or 
a common enemy," the governor may convene the legislature at 
any other place ; and in Maine, the change may take place on the 
occurrence of danger, " from an enemy or contagious disease." 

Section V. Dissolution". 

525. The British parliament, as has aheady been stated, may be 
dissolved by the king at his pleasure, in %irtue of his royal preroga- 



Chap. VI.] dissolution. 211 

tive ; otherwise it will continue for seven years from the day on 
which it was first appointed to meet ; and is then dissolved by 
lapse of time. In this country, every legislature, with one excep- 
tion, continues in existence for the period for which it was elected, 
whether in session or not, and cannot be dissolved by the executive 
or any other authority. In New Hampshire, however, the constitu- 
tion provides, that the general court shall dissolve of itself, or, if in 
session, be dissolved by the governor, seven days preceding the day, 
on which the term of office of the members expires. 

526. In England, when it is the intention of the king to dissolve 
the parliament, the practice has prevailed for a long time, first, to 
prorogue it to a certain day ; and, then, at some intermediate period, 
a proclamation issues, discharging the members of both houses from 
their attendance on that day, and dissolving the parfiament. The 
reasons for this practice, according to Hatsell,- are probably those 
suggested by Charles I. in his speech, in 1628 : — " That it should 
be a general maxim with kings, themselves only to execute pleasing 
things, and to avoid appearing personally in matters that may seem 
harsh and disagreeable." 

527. The members of the legislative assembfies, in the several 
States, are chosen for certain specified terms, which, of course, ex- 
pire with the limitation of time, and if the assembly is then in ses- 
sion, it is dissolved, with the functions of its members. The con- 
stitution of the United States declares that representatives shall 
be chosen for two years and senators for six; but it does not 
specify the time from which this term of service shall commence 
running. In practice, however, the commencement of the political 
year, under the constitution of the United States, has been fixed at 
the fourth of March, in consequence of that day having been ap- 
pointed by the old congress, when the constitution was adopted, for 
commencing proceedings under it. Members were elected, there- 
fore, to the first congress, whose term of service commenced on the 
fourth of March, for two years, and their successors being elected 
accordingly, for two years, from the expiration of the term of office 
of their predecessors, the fourth of March has since been recognized 
and practically established, as the commencement of the pofitical 
year, under the constitution of the United States. If congress is in 
session, when the term of office of the members of one of its 
branches expires, it is, of course, dissolved by lapse of time. 

1 Hatsell, n. 383, 



LAW AND PRACTICE 



LEGISLATIVE ASSEMBLIES. 



PART THIED. 

OF THE PRIVILEGES AND INCIDENTAL POWERS OF A 
LEGISLATIVE ASSEMBLY. 



(218) 



LAW AND PRACTICE 



LEGISLATIVE ASSEMBLIES. 



PART THIED. 

OF THE PRIVILEGES AND INCIDENTAL POWERS OF A 
LEGISLATIVE ASSEMBLY. 



528. The several subjects, embraced and treated of in this part 
of the work, may properly be considered under the following heads, 
namely : — I. Of the General Nature of the Privileges and Incidental 
Powers of a Legislative Assembly ; II. Of the Personal Privileges 
of the Members ; III. Of the Collective or Aggregate Privileges of 
the Assembly ; IV. Of the Incidental Powers of a Legislative As- 
sembly. 



CHAPTER FIRST. 

OF THE GENERAL NATURE OF THE PRIVILEGES AND INCIDENTAL 
POWERS OF A LEGISLATIVE ASSEMBLY. 

529. The functions of a legislative assembly can only be exer- 
cised, when the members are assembled together, as a legislative 
body, that is, as a collective and representative body of the whole 

(215) 



I 



216 LEGISLATIVE ASSEMBLIES. [PaRT III. 

people, at the time and place, appointed and established for the 
purpose of such meeting ; but singly or separately, or at any other 
time or place, the members have no legislative povi^er or authority 
whatever.^ It is essential, therefore, in order to enable the mem- 
bers to assemble themselves, and to remain together, for the pur- 
poses for which they are constituted, that they should not be pre- 
vented or withdrawn from their attendance, by any causes of a less 
important character; but, that for a certain time, at least, they 
should be excused firom obeying any other call, not so immediately 
necessary for the great services of the nation ; and hence it has 
al^vays been admitted, that the members of a legislative assembly, 
during their service and attendance, as such, were entitled to be 
exempted from several duties, and not considered as liable to some 
legal processes, to which other citizens were by law obliged to pay 
obedience.^ 

530. It is not enough, however, to secure the free attendance of 
the members merely ; they must always be protected in the free 
enjoyment of the rights of speech, debate, and determination, in 
reference to aU subjects upon which they may be rightfully called 
to deliberate and act ; and, hence, it is established as a general 
principle of parliamentary law, that no member of a legislative 
assembly can be questioned or punished by any other court or 
authority, but only by the assembly itself of which he is a member, 
for any thing said or done by him in that capacity. 

531= The rights and immunities alluded to in the foregoing par- 
agraphs belong principally to the individual members, and only 
secondarily and indirectly to the assembly itself ;3 but there are 
also other legislative rights and immunities, equally essential to 
enable the assembly to perform the functions with which it is 
invested, which, being directed rather to the maintenance of its 
collective authority than to the secmity of the individual members, 
may be properly said to belong primarily to the assembly itself, 
and only secondarily and by relation to the members of which it is 
composed."^ 

532. AU these rights and immunities, both of the members, indi- 
vidually, and of the assembly in its collective capacity, are known 
by the general name of privileges ; and when they are disregarded 
by any individual or authority, whose duty it is to take notice of 

1 Whitelocke, II. 192; Mass. Eeports, 11. 27. * The personal privileges cannot be waived 

* " When you violate the privilege of one by the members themselves, without the 

member of this house, you do it to the whole consent of the assembly. Dwarris, I. 103; 

house." Grey, EI. 58. By Mr. Speaker. D'Ewes, 436 ; Fortam v. Lord Rokeby, Taun- 

•Hatsell, L 2. ton's Reports, IV. 668; Taunt. Kep. VII. 172. 



Chap. L] general nature of privilege. 217 

and observe them, or when they are directly attacked in any way, 
or, in general, when any impediment or obstruction is interposed to 
the free proceeding of a legislative assembly or its members, the 
offence is denominated a breach of privilege. 

533. The privileges of a legislative assembly would be entirely 
ineffectual to enable it to discharge its functions, if it had no power 
to punish offenders, to impose disciplinary regulations upon its 
members, or to enforce obedience to its commands. These powers 
are so essential to the authority of a legislative assembly, that it 
cannot well exist without them ; and they are conseqviently entitled 
to be regarded as belonging to every such assembly as a necessary 
incident. The privileges and the powers of a legislative assembly 
are therefore so far connected together that the latter are the neces- 
sary complement of the former. 

534. The privileges and powers which were claimed and exer- 
cised in ancient times by the two houses of the Briiish parliament, 
embraced a wide extent of jurisdiction, legislative, judicial, and 
administrative, and were to a considerable extent vague, indefinite, 
and anomalous. Their nature and extent formed a fruitful and 
frequent subject of inquiry, and gave rise to numerous controver- 
sies, sometimes between the two houses themselves, and sometimes 
between them or one of them, on the one hand, and the king, or 
some of the courts on the other. In consequence of these contro- 
versies, the privileges and powers of parliament have gradually 
assumed a more distinct form and become more definite in their 
object; so that in modern times, those only remain which are 
essential to enable each branch to perform its appropriate constitu- 
tional functions ; and these are now as well recognized and estab- 
lished, and as accurately defined, partly by usage, partly by law, 
and partly by the admission of coordinate authorities, as are any of 
the rules and principles of the common law. 

535. During the reigns of George I. and 11. and for some time 
afterwards, it appears to have been the established principle, that 
any illegal or wrongfully injurious act, which subjected a member 
to any inconvenience, or had a tendency to divert his mind or his 
attention from his parliamentary duties, was a breach of privilege 
and punishable as such. Thus, there is a great number of cases 
of complaints in the house of commons for breaches of privilege 
vvhich were nothing more than trespasses upon the real or personal 
estates of members, and in no way affected their persons. Some of 
these complaints are sufficiently curious. One member com- 
plained, that several men, who were at work upon his tenant's 

19 



218 LEGISLATIVE ASSEilBLIES. [PaET III. 

land had been turned ont; another that several persons had taken 
and carried avv^ay timber-trees, and quantities of fagots belonging 
to him ; another that several persons had dug quantities of lead 
ore out of his mines ; another, that a person had made a forcible 
entry into and a lease of part of his estate ; another, that several 
persons had broken open his gate, and drove a great number of 
waggons over his field ; another, that several persons had killed a 
great number of his rabbits. In these cases, after the offending 
parties had been sent for in custody, further proceedings were 
usually stayed, on the house being informed that the parh' had 
made satisfaction. It "^'as ^\"ith such precedents as these before 
him, that Blackstone lays do\\Ti the doctrine of the large and indefi- 
nite nature of privilege. " Privilege of parliament "^^as principally 
established, in order to protect its members not only irom being 
molested by their fello^^-subjects, but also more especially from 
being oppressed by the power of the crown. K therefore all the 
privileges of parliament vrere once to be set do^Ti and ascer- 
tained, and no privilege to be allowed but what was so defined 
and determined, it -^-ere easy for the executive power to de^*ise 
some new case, not v^dthin the line of privilege, and imder pretence 
thereof to harass any refractory member, and violate the freedom 
of parliament. The dignity and independence of the two houses 
are therefore in great measure preserved by keeping their privileges 
indefinite." This doctrine went upon the ground, that the house 
of commons by a declaratory resolution, operating retrospectively, 
could make any thing a breach of pri^'LLege, v.'hich it might think 
fit to bring within its jurisdiction. This right, lately, if not now 
claimed in theory, appears to be abandoned in practice.^ 

536. In both branches of the British parhament, the privileges 
of the members are doubtless founded in the same general reason, 
namely, the necessity of their existence to enable a legislative body 
to perform its appropriate functions ; but in the house of commons 
a custom has prevailed firom a very early period, which seems also 
to imply the necessity of a special grant from the king, at the com- 
mencement of every ne^v parliament. When the house of com- 
mons first assembles after a general election, the speaker elect, on 
being presented to the king, in the house of lords, and confirmed, 
makes a claim, on behalf of the commons, of their ancient privi- 
leges, A\^hich are thereupon recognized and aIlo"wed by the king. 
The origin of this practice, or the reason of it, cannot now be ascer- 

1 3Iay, lOS ; see also Thorpe's Case, Comm. Jonr. X. 402. 



Chap. L] general nature of privilege. 219 

tained with certainty. It may be conjectured, however, that when 
the commons and lords separated, and the former became a sepa- 
rate and coordinate branch, the members of which did not, like the 
lords, sit in their own right, but as the representatives of the people, 
it was thought necessary to invest them with the privileges of a 
court of parhament, by a special law. This conjecture is strength- 
ened by the form of the ceremony, which corresponds precisely to 
the ancient mode of making laws, namely, a petition preferred by 
the commons and assented to by the king and lords ; and also by 
the fact, that upon the election and approval of a new speaker in 
the same parliament, he does not renew the claim of privileges for 
the commons. But whatever may have been the origin of the cus- 
tom, or its supposed necessity, it is not now imagined to be any 
more requisite to the existence of the privileges of the commons 
than to those of the lords ; and the former would undoubtedly be 
held to exist, though the speaker should omit to claim them, at the 
commencement of the parliament ; or if, when claimed, they should 
be refused.^ The commons, says Hatsell, by this ceremony never 
acknowledged " that their privileges were derived from the grace 
and permission " of the sovereign ; " but they considered it as a 
public claim and notification to the king, and to the people, of the 
privileges of the house of commons, that none might plead igno- 
rance." 2 

537. It was anciently attempted by the house of commons, not 
only to arrogate to themselves the exclusive jurisdiction of all cases 
in which they pretended that their privileges were concerned, even 
incidentally ; but, also, and as a necessary consequence, to deny all 
other tribunals all knowledge of what those privileges were ; but 
both these pretensions have for a long time been abandoned ; the 
privileges of the members are now a part of the law of the land, 
and, as such, taken notice of judicially by aU courts and tribunals; 
and, at the present day, whenever a question of privilege arises or 
is made in any court, either directly or indirectly, in the exercise of 
its ordinary jurisdiction, such court is bound to take notice of and 
decide upon, the privilege in question ; and such decision is binding 
and conclusive, so far as the particular case is concerned, but with- 
out prejudice to the right of the house itself to decide upon it in an 
equally conclusive manner, whenever it is brought in question 
there.3 In this country, the same principles prevail ; and, with the 

» Hatsell, n. 229. » See May, 143. 

'■i Hatsell, n. 226. 



220 LEGISLATIVE ASSEMBLIES. [PaRT III 

greater reason, as, in most of the States, the privileges of the mem- 
bers of our legislative assemblies do not rest merely upon common 
or statute law, but upon constitutional provisions.^. 

538. In England, as has already been remarked, the powers and 
privileges of the two houses of parliament have for a long time 
been so regulated, defined, and limited, that they are as well estab- 
lished and known as the maxims and principles of the common 
law ; and before the American revolution, they were equally recog- 
nized and admitted, in this country, as belonging to the colonial 
and provincial legislatures. Since the revolution, they have been 
embodied, in some form or other, in all the constitutions of govern- 
ment. In those constitutions which took the place of the colonial 
and provincial charters, existing and established institutions were 
reduced into a written form, with such alterations and additions as 
the new circumstances made necessary, but with very little change, 
even of name, in matters of comparatively small importance, or 
which were already conformable to the spirit of the new order of 
things. We find, consequently, little or no change introduced by 
the revolution into the constitution of the second branch of the leg- 
islative body, and no disposition manifested to fimit, but rather to 
strengthen and establish, the privileges and powers, both of that 
and also of the other branch, which so far as its constitution was 
concerned, was now put upon the same footing with the former. 

539. In aU the constitutions, a legislative department is provided 
for in general terms, to consist of two branches, each of which, as 
to the number, qualifications, and elections of its members, is par- 
ticularly regulated. In some of these constitutions, certain powers 
and privileges are enumerated, in affirmative language, as belonging 
to each branch, accompanied sometimes by a general provision 
covering aU other necessary powers and privileges ; in some, nega- 
tive words are used in reference to particular powers ; in many of 
them, certain powers and privileges are expressly enumerated, and 
others equally essential to the very existence of a legislative body 
wholly omitted ; but, in all, the powers and privileges in question are 
referred to as existing and well-known principles of parliamentary 
law, and merely enumerated -^dthout being defined. 

540. In this variety and discrepancy of constitutional provisions, 
the only mode of treating the subject, which AviU be sufficiently fuU 
and satisfactory, without being tediously minute, or running into 
renetitionj will be to consider the privileges and powers of a legis- 

1 Coffin V. Coffin, Mass. Eep. IV. 31, 32. 



Chap L] general natuke of privilege. 221 

lative assembly, in the first instance, on the broad ground of com- 
mon parliamentary law ; and having done this, to point out, how 
far these general principles have been adopted, recognized, or re- 
strained by each particular constitution. 

541. The following rules of constitutional construction, which 
seem to be founded in reason, will assist us in ascertaining the 
powers and privileges of our several legislative assemblies, so far as 
they result from the principles of parliamentary law, in connection 
with constitutional and legal provisions. 

542. I. It may be laid down as the first rule on this subject, that 
the establishment, in general terms, of a legislative department, is 
equivalent to an express grant, to each branch composing it, of all 
the powers and privileges which are necessarily incident to a legis- 
lative assembly.^ 

543. II. The express enumeration of certain of these incidental 
powers and privileges, in a constitution by which a legislative de- 
partment is established in general terms, cannot be considered as 
the exclusion of others not named, unless negative terms, or words 
equivalent thereto, are used ; such affirmative enumeration being 
merely out of abundant caution, and its only effect, to place the 
subjects of it beyond legislative control or interference. 

* Cong. Globe, XXI. 1337. Mr. Jefferson, trine of the text may now be considered as 
(Mannal, Sec. III.,) in his remarks upon establislied by usage, and by the cases of 
Duane's Case in the senate, for a libel on that Burdett v. Abbott, in the fourteenth volume of 
branch, and upon the case of Randall and Mr. East's Reports, and that of Anderson v. 
Whitney, who were convicted and punished Dunn, reported in the sixth volume of Mr. 
in the house of representatives, for bribery Wheaton's collection, to which cases a general 
and corruption, lays down the doctrine, that reference is here accordingly made. The 
the federal government being one of limited power of a legislative body, to punish for a 
powers, neither branch of congress can exer- contempt, as incidental to its power to legis- 
cise any powers but those which are clearly late, was never more forcibly maintained or 
delegated to them by the constitution and that better expressed than by the old congress of 
until they make a law for the purpose, under the confederation, in a resolution of June, 
that provision of the constitution which au- 1777, on the occasion of one of the members 
thorizes them to make all laws necessary and being challenged for words spoken in debate: 
proper for carrying into effect the powers " Resolved, that congress have, and always 
vested in them by the constitution, neither had, authority to protect their members from 
house has any authority to commit for a con- insult, for any thing by them said or done in 
tempt. Fifty years have elapsed, since this congress in the exercise of their duty, which 
doctrine was first brought forward; but no is a privilege essential to the freedom of de- 
law has been passed, and the power in ques- bate, and to the faithful discharge of the gi-eat 
tion has been repeatedly exercised. The prin- trust reposed in them by their constituents." 
ciple, stated by Mr. Jefferson, seems to con- Mr. Gunning Bedford the challenger was 
found together two things which are essen- thereupon summoned to appear before congress 
tially different, the powers of a legislative to answer for his conduct, and, having ap- 
assemhly, as such, and the subjects of legisla- peared in obedience to the requisition, and 
tion, and to apply to the former, an argument asked pardon of the house, and of the member 
ffhich onlv bears upon the latter. The doo- challenged, he was discharged. 

19* 



222 LEGISLATIVE ASSEMBLIES. [PaET III. 

u44. III. Where a particular power, whether given expressly or 
by impKcation, is regulated by express constitutional provision, 
either as to the cases to which, or the manner in which, it is to be 
applied, the power in question is not applicable to any other cases, 
or in any different manner. 

545. IV. Where there is no constitutional restriction, either by 
nega^tive T\^ords, or terms equivalent thereto, and also where there 
is no enumeration, or a general one only, the po^vers and privileges 
of a legislative assembly may be provided for, regulated, or limited, 
by law ; and, in all these cases, if there is no provision or regula- 
tion of law, or only in part, the first and second rules above given 
are applicable. 



CHAPTER SECOND. 

OF THE PERSONAL PRIVILEGES OF THE IMEMBERS. 

546. The parliamentary pri^dleges coming under this head, so 
far as they belong to the lords, being the privileges of the peerage 
rather than of parliament,^ have remained nearly the same from 
the earhest period, and are someT\^hat different, as to their nature 
and extent, from the corresponding privileges of the commons ; but 
the latter house has from time to time been obliged to make new 
claims of privilege, and to exert new modes of maintaining and 
defending those claims, in proportion as the lengthening of the 
duration of the session made other avocations inconvenient and 
incompatible "with their parliamentary duties ; and as the increase 
of theii- consequence in the State, and their influence in the man- 
agement of pubhc affairs, rendered them more an object of the 
attention of the ministers of the crown.^ The principal view of 
the commons, in aU then- claims of privilege, has been to enable 
themselves to discharge their public duties, by a constant attend- 
ance in parliament, without being deterred by threats or insults of 
private persons; or diverted by any concern for their estates or 
affairs ; or restrained by the summons of other courts, the arrest of 
their bodies in ci^dl cases, or commitment by order of the crown.^ 
But they have never gone the length of claiming any exemption 

1 Hammond, 71. 3 Hatsell, I. 206. 

2 Hatsell, I. 206. 



Chap. IL] personal privileges. 223 

from the operation of the criminal laws ; or of attempting to pro- 
tect themselves from any prosecution for treason, felony, or breach 
of the peace ; " being sensible, that it equally imported them, as 
weU to see justice done against them that are criminous, as to 
defend the just rights and liberties of the subject and parliament of 
England." ^ 

547. The personal privileges of the members, are so far matters 
of public concern, that they cannot be taken away by any act of 
the assembly, other than by expulsion or its equivalent ; nor, where 
they are secured by constitutional provisions, can they be taken 
away or annulled even by an act of the legislature.^ For the same 
reason, also, it is not in the power of a member to waive any of 
his privileges, the purpose of which is to enable him to give his 
attendance ; ^ though there seems to be no good reason why he 
might not waive any of the others. 

548. The personal privileges of the members are intended to 
enable them to give then attendance ; to guarantee them against 
all restraint or intimidation in the discharge of their duties ; 
and to facilitate communication between them and their immedi- 
ate constituents. These privileges are the following, namely : — 
1st, Exemption from legal process ; 2d, Exemption from service as 
jurors or witnesses ; 3d, Freedom of debate and proceedings ; 4th, 
Franking Privilege. These subjects being treated of in then order, 
a fifth section will be devoted to the personal disabilities of mem- 
bers, which seem proper to be treated of in this connection. 



Section I. — Exemption from Legal Process. 

549. Exemption from legal process, which is one of the most 
important of the personal privileges of the members of a legislative 
assembly, will be considered under the following heads, namely : — 
1st, Its nature and extent as to persons ; 2d, Of the cases to 
which it is applicable ; 3d, Of this privilege as affected by the con- 
stitutions of the several States ; 4th, Of the duration of this privi- 
lege ; and, 5th, In what manner it may be taken advantage of. 

1 Hatsell, L 207. 3 D'Ewes, 436; Dwarris, L 103; Fortam v. 

« Cojjin V. Coffin, Mass. Rep. IV. 27. Lord Rokeby, Taunt. Reports, IV. 668; Taunt. 

Rep. VII. 172. 



224 LEGISLATIVE ASSEMBLIES. [PaET IIL 



Article I. — Of the Nature and Extent of this Privileg-e as to 

Persons. 

550. The personal privileges of the members of a legislative 
assembly, being intended for the most part to enable them to dis- 
charge their duties as such, and essential to that end, it is clear, 
that those persons only can claim the rights and immunities secm-ed 
by these privileges, who are either entitled pi'ima facie to take upon 
themselves the functions of members, or whose official character is 
admitted or recognized by the assembly itself ; for none others are 
entitled, or can be admitted, to perform the functions of members. 

551. From the time of an election to the time of meeting of the 
assembly, to which period, one of the most important of the per- 
sonal privileges of members refers, namely, that of freedom fi-om 
arrest in going to the place of meeting, those only who have a right 
to take upon themselves the functions of members are entitled to 
privilege, that is to say, who have been declared to be elected by 
the competent officers, and have received certificates of their elec- 
tion, or have been otherwise duly returned. 

552. After the commencement of the session, and whilst the 
assembly is sitting, those only can be accounted as members, who 
have been duly elected as above mentioned, but, who, for some 
reason, have not yet taken their seats, or, who, having taken their 
seats, are admitted and recognized by the assembly itself, as mem- 
bers. 

553. After the termination of the session, either by adjournment, 
or prorogation, those only are to be regarded as members, who were 
duly in or prima facie entitled to the exercise of their official func- 
tions, at the time of such adjom-nment or prorogation ; or who have 
since been duly elected to fill vacancies, in which case their rights 
are the same as those of members originally elected, prior to the 
first meeting of the assembly. 

554. The privileges of the members are of so great importance 
that no man is allowed to plead ignorance of the persons of those 
who are entitled to them. It is laid down accordingly by Sir 
Edward Coke,^ "that every man is obliged, at his peril, to take 
notice who are members of either house, returned of record ; " and, 
as it is also a general principle of the English parliamentary law,^ 

1 Fourth Institute, 24. See also Fortam v. 2 Hatsell, U. 75, note. See also Ilatsell, L 
Lord Eoheby, Taunt. Eep. IV. 668. 166. 



Chap. II] personal peivileges. 225 

that, " at the moment of the execution of the indentm-e, (or return,) 
the existence of the member, as a member of parliament, com- 
mences to ah intents and purposes whatsoever," it follows, that in 
England, every man is bound to take notice of the official character 
of a member of the house of commons, from the moment of the 
execution of the indenture or return. 

555. In this country, the making of the certificate of election by 
the competent officers being equivalent to the execution of the in- 
denture, according to the form of proceeding in England, it may be 
laid down as a rule of our parliamentary law, in conformity with 
the principles above stated, that, when an election has been duly 
declared and certified, by the proper returning officers, every citizen, 
and much more every public officer, is bound to take notice of the 
official character of the member elected. In England, as has been 
seen, in another place, the returns on file in the crown office always 
indicate who are members, to the end of the parliament, because 
none but persons duly returned are allowed to take seats, in the 
first instance, and, when an election or return is set aside, and a 
petitioner admitted to a seat, instead of the member originally 
returned, the return is amended, taken off the file, or a new one 
placed there, in conformity with the decision of the house. In our 
legislative bodies, it is not supposed, that this form of proceeding is 
always or even at all observed ; but, where it is not, the order or 
vote of the house must be considered of equivalent authority. The 
presiding officer, when not a member of the body over which he 
presides, is entitled to the privileges of a member, at least, during 
the time he presides. 

556. It being a principle of parliamentary law, that a legislative 
assembly is the sole and exclusive judge of the returns and elections 
of its own members,^ 'it follows that the validity of an election or 
return cannot be drawn into question on a claim of privilege; for, 
otherwise, the independence of the assembly would be placed com- 
pletely at the discretion and in the power of other coordinate 
branches of the government ; but, on the other hand, as the privi- 
leges of members " are not to be used for the danger of the com- 
monwealth," 2 and, moreover, are sometimes necessary to be claimed 
when the assembly is not in session, it is an admitted principle, that 
their validity and extent are also to be judged of by the tribunal in 
which the claim is made. K in this way, any collision of authority 

» Ante, § 138. This principle is very gen- * Hatsell, I. 206. 
erally declared in the constitutions of the 
ieveral States. 



S26 LEGISLATIVE ASSEMBLIES. [PaET IIL 

or jurisdiction should arise, the difficnilty can only be accommodated 
by concession. 

557. The personal privileges of members continue in fall force, 
not\\dthstanding their absence, either with or Vkdthout leave of the 
assembly, in the same manner, and to the same extent, as if they 
were present ; for, otherwise, it would be in the power of any mem- 
ber, by his own act or fault, to oust the assembly of its right to his 
attendance and services ; but, on ceasing to be a member, either by 
resignation, acceptance of an incompatible office, or by expulsion, 
the privilege is at an end. 

558. At the period, when parliamentary privilege by the gradual 
process of claim by one or both of the t^vo houses, coupled with 
the submission of individuals against Avhom it was exerted, and 
the sanction of the judicial tribunals, had risen to its greatest height, 
the privilege of exemption from legal process embraced the ser- 
vants of members, and extended, also, to their goods and estates ; 
the former being exempted from summons and arrest, and the latter 
from attachment ; but the personal privileges of members, so far as 
they operated to obstruct the ordinary course of justice, have been 
since reduced, in part by the voluntary abandonment of the two 
houses, but chiefly by sundry statutes,^ and particularly by that of 
10 Geo. III. c. 50, which aUows members to be sued, and their 
estates to be attached, and Vv^hich also withdraws all protection what- 
ever from their servants ; so, that, at the present day, the privilege 
of exemption from legal process, so far as relates to the subjects of 
it, is confined strictly to the persons of members, and of the officers, 
such as the sergeant-at-arms, door-keepers, and clerks attending 
upon either house.^ 



Aeticle II. Of the Cases to which this Privilege is applicable. 

559. In regard to the cases to which this privilege extends, it is 
laid down by Sir Edward Coke,^ that, " generally, the privilege of 
parliament do hold, unless it be in three cases, namely, treason, felony, 
and the peace ; " and, the same language is used, in stating the rule 
on this subject, by aU the compilers and writers, since his time, as 
well as by the house of commons, in their frequent resolutions con- 
cerning privilege ; though, sometimes, instead of the phrase, " the 
peace," the words " breach or surety of the peace," are used. The 

1 12 & 13 Will. m. c. 3; 2 & 3 Ann. c. 18; « Lex Parliamentaria, 380. 

11 Geo. n. c. 24. s Fourth Institute, 25. 



Chap. II.] personal privileges. 227 

correctness of the distinction, however, implied in the rule as thus 
stated, is called in question by lord chancellor Brougham, as " incon- 
sistent with itself, fruitful of bad consequences, and incapable of 
being pursued through the authorities ; " ^ and he lays down the 
following as "the plain, broad, obvious, and intelligible rule," 
namely, " that with respect to every thing which is in its nature 
criminal, privilege of parliament will be no protection ; but with 
respect to every thing in the nature of civil process, whatever may 
be the technical and outward form of that process, such privilege 
wih enure to protect the party." ^ 

560. It is quite obvious that the excepted cases of "treason, 
felony, and the peace," do not cover the whole ground of criminal 
matters, inasmuch as they do not in strictness include those mis- 
demeanors, such, for example, as perjury, which are neither felonies, 
nor accompanied with a breach of the peace, but which are never- 
theless as criminal, and punishable with as much severity, as many 
felonies, and the prosecution and punishment of which are equally 
important to the public welfare. In these and other cases of the 
same description, which do not faU properly under either of the 
heads of treason, felony, or the peace, lord chancellor Brougham 
says, that " the privilege of parliament has been held to be no pro- 
tection,"^ and, it is not unworthy of notice, also, that in the lan- 
guage of Sir Edward Coke, the rule is qualified by the term 
"generally." In this uncertainty, therefore, as to the rule, as an 
abstract proposition, it will be useful to present the results of the 
authorities somewhat in detail. 

561. I. Ie regard to civi] process, properly so called, that is, pro- 
ceedings instituted for the enforcement of a civil right,"^ either by 
way of damages for its infraction, or by way of recovery of a spe- 
cific thing, there can be no doubt, that the privilege protects from 
arrest and imprisonment, whether the process is original, mesne, 
or final, and whether the proceeding is by action at the suit of an 
individual, or by information,^ or other process, at the suit or on 
the behalf of the public.*^ 

562. II. In regard to criminal process, properly so called, that is, 
proceedings instituted for the apprehension and trial, before a com- 
petent tribunal, with a view to punishment, of one accused of 
crime, the authorities are equally clear, that the privilege affords no 

1 Wellesley's Case, Russell & Mylne's Re- ' Hale on Parliaments, 30. 
ports, II. 673. 4 Jefferson's Manual, § 3. 

2 Weslmeath v. Westmeatk, Law Journal, IX. s jjale on Parliaments, 30. 
Chancer}'), 179. « Hale on Parliaments, 16. 



228 LEGISLATIVE ASSEMBLIES. [PaRx III. 

protection, provided that the offence, on or in reference to which the 
process is issued, is either treason, felony, or breach of the peace, 
or the proceeding in question is instituted for the purpose of 
obtaining surety of the peace.^ 

563. III. In reference to misdemeanors, unaccompanied by a 
breach of the peace, which are not technically included in the 
excepted cases, the authorities are conflicting. Lord Camden, in 
the case of John Wilkes, who, whilst a member of the house of 
commons, was indicted for a seditious hbel, discharged him from 
arrest, on the ground, that the offence was neither treason, felony, 
nor breach of the peace, and consequently, came within the privi- 
lege of parliament.^ On the contrary, it was afterwards resolved 
by both houses, m reference to the same subject, and upon reasons, 
which apply equally to every indictable offence, that the privileges 
of parliament did not extend to the case of Mniting and pubhshing 
a seditious libel ; ^ and Lord Brougham in the cases cited in a pre- 
ceding paragraph, (in neither of-Avhich, however, was the decision 
of this point necessary,) lays doA^oi the rule, in general and broad 
terms, that the privilege of parliament does not extend to any crimi- 
nal matter or proceeding whatever. In this conflict of authorities, 
the reason of the whole matter, which clearly excludes aU distinc- 
tion of offences, in reference to this subject, may be allov\"ed to turn 
the scale, in favor of the broad rule, which withdraAvs the protec- 
tion of parliamentary privilege from offences and criminal proceed- 
ings of every description. 

564. IV. There is another class of cases, which do not come 
properly under the denomination of either civil or criminal proceed- 
ings, as above defined, but which ordinarily give rise to an attach- 
ment or an arrest and imprisonment of the person, namely ; con- 
tempts of the judicial tribunals, either by disobedience of their 
orders, or by contumelious and disorderly behavior towards their 
authority or in their presence. In reference to these cases, the 
authorities shovv, that where the contempt is a mere disobedience 
of an order of the court, made for the sole purpose of enforcing a 
civil right, and in the nature of a process to compel the doing of a 
specific act, as, for the payment of money, or other performance 
of an award,"* or for the payment of costs,^ the privilege will protect 
against an attachment ; but, where the contempt arises from the 

1 Rex V. Ferres, Burrow's Eeports, I. 631. * Walker v. Earl of Grosvenor. Tatmt. Eop. 

- See May, 130. VII. 171 ; Catmur v. Knatckbull, Same, 448. 
3 Dwarris, Part I. 98; Coram. Jour. XXIX. = Westmealhv. Westmeaih, Law Journal, IX. 

889. (ChancerjO, l^S- 



Chap. IL] personal privileges. 229 

disobedience of such an order, and is accompanied by criminal in- 
cidents, as where a ward of ihe court of chancery was clandestinely 
removed from the custody of the person with whom the ward was 
residing under the authority and by the order of the court ; ^ or, 
where it consists of contumelious, disorderly, or indecent behavior 
towards and in presence of a judicial tribunal, as, for example, 
refusing to be sworn as a witness,^ the privilege will afford no pro- 
tection. 

565. V. There is still a further class of cases, somewhat analo- 
gous to those last mentioned, which, so far as the privilege of parlia- 
ment is concerned, seem to have been placed upon a distinct fooling 
from ordinary contempts of the judicial tribunals. These are cases 
in which the personal liberty of the citizen is involved, and the con- 
tempt consists in refusing obedience to a wiit de homine replegiando^ 
or of habeas corpus. In cases of this kind, the privilege of parlia- 
ment affords no protection. In reference to the first-mentioned 
writ, it is laid down by Fitzherbert,^ that " if there be any eloign- 
ment returned by the sheriff, the plaintiff shall have a capias in with- 
ernam^ to take the defendant's body, and to keep the same quousque, 
etc., whether it be ajoeerof the realm or other common person ; " and 
in reference to the writ of habeas corpus, it was " ordered and de- 
clared " by the lords, in conformity with a decision of the court of 
king's bench,* which gave occasion to the resolution, " that no peer 
or lord or lord of parliament hath privilege against being compelled, 
by process of the courts of Westminster HaU, to pay obedience to 
a writ of habeas corpus directed to him." ^ 



Article III. Of this Privilege as affected by the Constitutions of 

the several States. 

566. Having thus examined the subject of the privilege of 
exemption from legal process, on the ground of common parlia- 
mentary la\v, it remains to point out how far the general principles 
relating thereto have been adopted, recognized, or restrained by con- 
stitutional or legal provisions, in this country. In the constitution 
of the United States and in those of the several States, except 
Vermont, New York, Virginia, and North Carolina, this privilege 
is particularly defined and recognized. 

1 Welleslei/s case, Russell & Mylre's Eep. ^ Natura Brevium, 155, C. 

n. 639. See ulso Wilkinson v. Boullon, Lev- * Ecx v. Ferrers, Burrows's Rep. I. 631. 

inz's Reports, L 162. s June 8th, 1757 : Lords' Jour. XXIX. 181 

2 Bex V. Preston, Salkeld, L 278. 

20 



230 LEGISLATIVE ASSEMBLIES. [PaET IIL 

567. In the greater number of the constitutions it is expressly 
provided, that members shall be privileged from arrest, during their 
attendance at the session of their respective houses, and in 
going to and returning from the same, in all cases, except " treason, 
felony, and breach of the peace." This it wiR be recollected is 
the form in which the privilege is stated by Sk Edward Coke, and 
in which it is usually expressed by the EngUsh waiters on parlia- 
mentary law; and it ^vas undoubtedly adopted in the constitutions 
as correctly expressing the parliamentary rule on the subject. The 
inaccuracy of the language has already been pointed out, and it 
has been shown, that, in England, the exception embraces all crim- 
inal matters whatsoever, and, of course, includes many cases which 
do not fall mthin the denomination either of treason, felony, or 
breach of the peace. The question, therefore, arises, whether the 
exception of treason, felony, or breach of the peace, being stated ui 
express terms, in these constitutions, is to be understood strictly, 
and confined to cases coming within the technical definitions of 
those offences, or whether it is used as a compendious expression 
to denote all criminal cases of every description. In favor of the 
latter opinion, it may be said, first, there can be no doubt, that the 
fi-amers of these constitutions intended to secm-e the privilege in 
question upon as reasonable and intelligible a foundation, as it ex- 
isted by the parliamentary and common law of England ; in short, 
that as in a multitude of other cases, they intended to adopt, wdth 
the words, the full meaning which had been given to them by usage 
and authoritative construction ; and, second, that the word felon?/, 
which alone gives rise to any doubt, " has derived so many mean- 
ings from so many parts of the common law, and so many statutes 
in England, and has got to be used in such a vast number of dif- 
ferent senses, that it is now impossible to know precisely in what 
sense we are to understand it ; " ^ and, consequently, that unless it 
is allowed to have such a signification, as with the other words of 
the exception, "will cover the whole extent of criminal matters, it 
must be rejected altogether for uncertainty, or, at least, restricted to 
a very few cases. These reasons, alone, though others might be 
added, are sufficient to estabfish the point, that the terms " treason, 
felony, and breach of the peace," as used in our constitutions, em- 
brace aU criminal cases and proceedings whatsoever. In the federal 
government, therefore, and in the States above referred to, the priv- 
ilege of exemption fi-om legal process may be considered the same 
as it is in England. 

1 Dane's Abridgment, C. 200, Art. 12. 



Chap. II.] personal privileges. 231 

568. This is the form, in which the privilege is stated in aU the 
constitutions except those above excepted, and in those of Massa- 
chusetts, New Hampshire, Connecticut, and Rhode Island. The 
constitutions of Pennsylvania and Kentucky, extend the exemption 
to " surety of the peace," and that of Maryland to " other criminal 
offence." The constitutions of Indiana, Michigan, Wisconsin, and 
California, after stating the privilege in the above-mentioned form, 
add also that no member shall be subject to any civil process, dur- 
ing the session of the legislature of which he is a member, nor, in 
the first-named State, for fifteen days next before the commence- 
ment, and in the others, for fifteen days before the commencement, 
and for fifteen days after the termination, of the session. 

569. The constitutions of New Hampshire and Massachusetts 
provide, that no member shall be arrested or held to bail on mesne 
process, during the sitting of the legislature, and in going to and 
returning from the same ; by the constitution of Rhode Island, the 
privilege protects the persons of members from arrest, and their 
estates from attachment, in any civil action, and by that of Con- 
necticut members are, in all cases of civil process, privileged from 
arrest. 

570. The constitution of South Carolina contains a similar pro- 
vision, but extending the protection of the privilege to the estates 
as well as the persons of members. In North Carolina and Vir- 
ginia, there is a like provision by la^v, embracing, in the former 
State, the estates, and in the latter, both the estates and the ser- 
vants, of the members. In Vermont, there is no express provision 
on the subject of privilege ; the constitution merely declaring, after 
an enumeration of sundry powers conferred upon the assembly, that 
it " shall have aU the other powers necessary for the legislature of 
a free and sovereign State." The constitutions of Connecticut, 
Pennsylvania, Delaw"are, Alabama, Mississippi, Tennessee, Indiana, 
and Iowa, besides what is said therein specifically concerning the 
exemption of members from legal process, contain a general pro- 
vision that each house shall have all other powers necessary for a 
branch of the legislature of a free and independent State. The 
provision in the constitution of Ohio, is, that each house shall have 
all other powers, necessary "to provide for its safety, and the 
undisturbed transaction of its business." In these States, therefore, 
the privileges of members may be considered to be such as usually 
belong to legislative assemblies, by the common law of parlia- 
ment. 



23^ LEGISLATIVE ASSEMBLIES. [PaKT III. 

571. In New York, it is provided by law/ that members of the 
legislature shall be privileged from arrest on civil process, except 
when issued on account of any forfeiture, misdemeanor, or breach 
of trust, in any office or place of public trust, held by any person 
otherwise entitled to privilege. In Maryland, the constitution gives 
the house of delegates express power to punish by imprisonment 
any person who shall be guilty of a breach of privilege by arresting 
a member on civil process. 

572. The nature of the preceding investigation has been such, 
and it has unavoidably been extended to so great a length, that it 
will be practically useful to present the results in a more summary 
form. The privilege of exemption from legal process, as estab- 
lished m this country, by constitutional and legal provisions, 
appears under the following modifications. 

573. I. Exemptions of the persons of members from arrest, accord- 
ing to the common parliamentary law of England, as stated in the 
preceding paragraphs. In this form the privilege exists in the federal 
government, and in the States of Maine, Pennsylvania, Delaware, 
Georgia, Kentucky, Tennessee, Ohio, Indiana, Louisiana, Missis- 
sippi, Illinois, Alabama, Missouri, Ar-kansas, South Carolina, North 
(^aroKna, Virginia, Michigan, Vermont, New Jersey, New York, 
(with certain exceptions,) Maryland, Connecticut, Florida, Texas, 
Iowa, Wisconsin, California, and Rhode Island. 

574. II. Exemption of the persons of members from being 
arrested or held to bail on mesne process. This is the form of the 
privilege as established by the constitutions of Massachusetts and 
Ne"w Hampshire. 

575. III. Exemption of the estates of members from attachment. 
This form of the privilege exists in Vuginia, North Carohna, 
South Carolina, Rhode Island, in addition to the other privileges 
established in those States. 

576. IV. Exemption of the servants of members from- arrest. 
This ancient extension of the privilege is found only in the laws 
of Virginia. It is restricted by the common parliamentary law, to 
menial servants only,^ that is, those who are necessarily and prop- 
erly employed about the estates or persons of members,^ and will 
not protect a person who is not bona fide a servant, but who has 
obtained the situation of one for the purpose of screening his per- 
son ; ^ nor wall it protect one, who, besides being a menial servant, 

1 Eevised Statutes, L 134. * Wilson's Reports, 278. 

« D'Ewes, 315, 655. * D'Ewes, 373. 



Chap. II.] personal privileges. 233 

acts also in some additional character, as that of an attorney.^ 
The rule that every person is bound, at his peril, to take notice 
who are members, returned of record, does not apply to the ser- 
vants of members.^ 

577. V. Exemption from civil process altogether. This provision 
is found only in the constitutions of Rhode Island and Michigan ; 
the former declaring aU process served contrary to the privilege 
therein contained to be void ; and, the latter, in addition to freedom 

.from arrest, declaring that members shaU not be subject to any 
civil process. 

578. VI. It has been seen, that, according to the common par- 
liamentary law, the officers of a legislative assembly, necessarily 
attendant thereon, as the clerks, sergeant-at-arms, and door-keeper, 
are equally pri vileged with the members,^ from being withdrawn by 
legal process, from the performance of their official duties ; and 
this privilege is so essential to the very existence of a legislative 
assembly, that it must be considered as a necessary incident to the 
establishment of such a body, though not expressly declared. In 
Arkansas and New York, it is provided by law ; * but in the latter 
State, the privilege is limited to the time of the actual attendance 
of the officers in question. 

Article IV. Of the Duration of this Privilege. 

579. The privilege of exemption from legal process being intended 
to enable the members to give their attendance at the time and 
place appointed for their sitting, and to remain together for the 
purpose of performing their duties as members ; it is manifest, that 
to be commensurate with the pm-pose for which it was intended, 
the privilege must commence a sufficient time previous to the 
session to enable the members to attend in season, and must con- 
tinue all the time of the sitting of the assembly ; and for the same 
reason which prevails in other cases of privilege, it ought also to 
continue for such a time after the termination of the sitting, as to 
enable the members to return to their homes. 

580. In England, the duration of this privilege, so far as relates 
to the peers, is the privilege of the peerage, and perpetual ; but 
as to members of the house of commons, in reference to whom it is 

1 Strange's Reports, 1065. ■'Revised Statutes of Arkansas, 106; Re- 

2 Fourth Institute, 24. vised Statutes of New York,' I. 154. 
8 Ante, '^ 558. 

20* 



234 LEGISLATIVE ASSEM^^LIES. [PaET IIL 

not a private right but a parliamentary privilege, its duration is not 
precisely determined. The received opinion appears to be,i that 
the members are entitled to a reasonable time to enable them to 
attend at. the commencement of the parliament ; ^ to forty days 
after each prorogation and the same number of days before the 
next appointed meeting ; ^ and upon a dissolution, to a reasonable 
time for returning home."^ 

581. In this country, the dm-ation of the privilege is fixed by con- 
stitutional and legal provisions, according to the circumstances and 
condition of each particular legislative assembly. In aU, the privi- 
lege continues during each session of the assembly ; but as to the 
time allowed for going and returning, different regulations pre- 
vail. 

582. In the federal government, and in the States of Mame, 
Massachusetts, Ne^r Hampshire, Pennsylvania, Delaware, Ken- 
tucky, Tennessee, Ohio, Louisiana, Illinois, North Carolina, Iowa, 
Vermont, and New Jersey ,5 members are privileged whilst going 
and returning merely, without other limitation of time. Where the 
dm-ation of the privilege is thus stated, members are entitled to a 
reasonable, or as it was expressed by the house of commons, on 
one occasion,^ a convenient time, for going and returning; thus, 
they are not obliged at the close of the session, to set out imme- 
diately on then- return home, but may take a reasonable time to 
settle their private affans, and prepare for the journey ; nor will the 
privilege be forfeited by reason of some slight deviation from the 
most direct road." 

583. In aU the other States, this privilege is limited, as to its 
duration, to a certain number of days before and after each session, 
namely, in Rhode Island, to two ; Connecticut, four ; South Caro- 
lina and Georgia, ten ; New York, fourteen ; Indiana, (before the 
session only,) Wisconsin, California, Missouri, Arkansas, and Michi- 
gan, fifteen ; in Mississippi, Alabama, Florida, Texas, and Virginia, 
to one day for every twenty miles distance from the place of sitting, 

1 See May, (3d ed.,) 120-123. Fortescue, 159; PiWs Case, Strange, 985; 

2 In Temple's case, Sergeant Maynard said. Cases Tempore Hardwicke, 28. 

"the privilege goeth twenty days before the ^ Jq the first of these two States, as there is 

session of the parliament; ad quod non fult no constitutional or legal provision on the 

responsMTO." subject, the duration of the privilege is stated 

^ Levinz's Reports, II. 72 ; Aihol v. Derby, as above, in accordance with what is sup- 

Wellsby, Hurlstone & Gordon, I. 430 ; May, posed to be the common law of privilege. 

118. 8 D'Ewes, 414. 

* Dwarris, 1. 101; Hammond, 7172. See also ^ Strange, II. 986; Jeflferson's Manual, Sec. 

m. 



Chap. IL] personal privileges. 235 

and in Indiana to one day for every thirty miles distance therefrom. 
Where the time of privilege is thus regulated, the day of the com- 
mencement or close of the session must be excluded from the 
enumeration. 

584. The time of privilege being limited to the duration of the 
session, and for a certain period previous and subsequent thejeto, it 
is important to determine what constitutes a session. In England, 
where the distinction between a prorogation and an adjournment is 
practically as well as theoretically recognized, this is a question of 
no difficulty ; because, it is there held, that when the parliament is 
prorogued, the session is terminated, but, that when an adjourn- 
ment of one or both branches takes place, the session is continued ; 
and the privileges of the members continue during an adjournment, 
however long it may be.^ But, in this country, some difficulty may 
arise in determining when the session is closed, and when it is 
merely continued ; inasmuch as the same term, adjournment^ is used 
almost invariably to denote both ; and the question must therefore 
depend upon whether the session is in fact terminated or only con- 
tinued by the proceeding which is denominated an adjournment. 
Where one branch only adjourns itself, there can be no doubt, that 
the privilege continues during the time of the adjournment. Where 
both branches adjourn at the same time, without day, or to the 
time fixed for the next regular session, such adjournment is clearly 
a termination of the session ; but where this is not the case, the 
question can only be determined by the intention.^ 



Article V. Of the Manner in which this Privilege is to he taken 

advantage of. 

585. The great purpose of the institution of privilege being to 
enable the members of a legislative assembly to give their attend- 
ance, as such ; when one is illegally arrested or detained, it is his 
duty to take immediate and effectual measures to obtain a dis- 
charge ; for which purpose, the proceedings may be different accord- 
ing as the privileging tribunal, or the arresting tribunal, or neither 
of them, may then happen to be in session. If the assembly is in 

1 Hatsell, I. 162. Mr. Dwarris (1. 102) quotes immediately follow the passage quoted from 

Hakewell as saying, that privilege does not con- Hakewell, show that by temjmre vacationis, he 

tinue during an adjournment, because " par- meant the time after a prorogation and not an 

liament doth not give privilege temjwre adjournment. 

vacationis, sed sedente curia only." But Mr. 2 Ante, § 503. 
Dwarris is mistaken; for the words which 



236 LEGISLATIVE ASSEMBLIES. [PaRT IlL 

session, at the time of the arrest of one of its members, he may be 
discharged by its authority; if the court or tribunal, to which the 
process is returnable, is in session, he may be discharged by the 
authority of such tribunal ; if neither is in session, he must make 
his appHcation to some other court or authority, invested with the 
cognizance of cases of illegal restraint of the person. It will be 
proper, therefore, to consider of the proceedings for a discharge, first, 
by the assembly itself ; second, by the court to which the process 
is returnable, and, third, by some other court or authority. 



I. Of Proceedings hy the Authority of the Assembly. 

586. This form of proceeding, which can only be resorted to 
when the assembly is in session, is fomided in the general principle, 
that it is the proper function of every court or tribunal to protect its 
own officers, suitors, and attendants, from being ^vlthdrawn from 
their attendance upon it ; and, consequently, that the an-est of any 
such persons, during the time of their privilege, is a contempt of the 
authority of the court by which they are privileged.^ 

587. Li England, various methods have at different periods been 
resorted to by the house of commons, for the delivery of pri^dleged 
persons from arrest. One mode was for the speaker to issue his 
warrant to the lord chancellor, for a writ of supersedeas or privilege^ 
another, to send the sergeant-at-arms, with the mace for his war- 
rant, to deliver the person arrested and bring him into the house ; a 
third, for the speaker, by direction of the house, to issue a warrant 
to the clerk of the crown in chancery, for a writ of habeas corpus 
directed to the officer having the privileged person in custody, to 
bring him \\dth the cause of his detention forth\\ith before the house, 
and upon the return of the ^^^\i and the appearance of the parties, 
for the house to discharge the prisoner, if entitled to privilege ; a 
fourth method, which was much in use during the reign of James 
I. was for the speaker to -^rrite letters to the several comts for a stay 
of the proceedings in cases in which members were concerned ; ^ 
but this course was not always effectual, and, on one occasion in 
the reign of Charles I. the court of king's bench declared that it 
was against the oaths of the judges to stay judgment upon such 
letters.3 The course adopted in modern times has been merely to 

1 Term Reports, IV. 377. 150; Xoy, S3; Prynne's Fourth Register, 810; 

2 See Hatsell, L 185. HatseU, L 184. 
* Hodges v. Moore, Latch's Reports, 15, 48, 



Chap. IL] personal privileges. 237 

make an order for the discharge of the person arrested, and to sig- 
nify the same, properly authenticated by the clerk, to the officer 
having the privileged person in custody .^ 

588. Of all these modes of proceeding, the only one which can 
properly be adopted at the present day, in this country, is the last 
mentioned. When relief is sought in this manner, the first step is 
to inform the assembly of the illegal arrest ; which may be done 
either by a petition from the person arrested, or by a statement of 
his case by one of the members. If the facts appear to be sufficient 
to establish the right of the party to privilege, an order may be 
made at once to discharge him from the arrest; if the facts are 
doubtful, witnesses may first be heard at the bar, or the case may 
be referred to the exammation of a committee. 

589. When the order for the discharge has been passed, it should 
be properly authenticated by the clerk, and served upon the officer 
having the custody of the privileged person. If the officer refuses to 
obey it, he may be proceeded against as for a contempt ; and such 
other measures may also then be resorted to for the delivery of the 
person privileged, as may be proper for that purpose. 



II. Of Proceedings by the Authority of the Court to which the 
Process is returnable, 

590. This form of proceeding is founded, in part, on the princi- 
ple of comity, by which one tribunal recognizes the privileges of 
another, and, partly, on the principle, that the privileges of members 
are part of the law of the land, of which it is the duty of all courts 
and ti'ibunals to take official notice. 

591. Anciently, when relief was sought in this manner, it was, in 
general, necessary for the party to obtain his writ of privilege from 
the court or tribunal by which he was privileged, and to plead it in 
the court by whose process he was arrested. In the case of attor- 
neys and some other privileged persons, this course seems to have 
been attended with little or no difficulty, the writ being issued by 
the proper officer, as a matter of course ; but in the case of mem- 
bers of the house of commons, who obtained their wcit of privilege 
from the lord chancellor, both the form of the writ, and the manner 
of issuing it, seem to have been attended with so much difficulty 



» Hatsel], I 166, 167 n 5 and see also Petrie's case, Comm. Jour. LXI. 406, 423, March 
20, 1793. 



238 LEGISLATIVE ASSEMBLIES. [PaKT IIL 

and nncei-tain'h-, that, in Pitt's case, in which application was made 
to the chancellor for such a -svrit in favor of the defendant, the 
petition was withdrawTi at the suggestion of the chancellor him- 
self.i 

592. This mode of proceeding, however, so far as relates to 
members of parliament, has been superseded, in more modern times, 
by the summary course of a motion for a discharge supported by 
the affida^dt of the party in custody. This v^^as first sanctioned by 
the judgment of ten of the twelve judges in Pitt's case, above 
referred to, decided in the twelfth year of George 11. ; and it has 
since been the usual form of proceeding, for the delivery of a privi- 
leged person from arrest, both in England and in this country.^ 
Where this course is resorted to, the person arrested makes his 
affidavit, setting forth all the facts of his case ; and, thereupon, 
moves to be discharged from arrest. The proceedings being similar 
in all respects, to what take place upon other motions grounded on 
facts, need not be here stated at length. 



IIL Of Proceedings by the Authority of some other competent 

Tribunal. 

593. If there were no other modes, than those above specified, by 
which a privileged person could be discharged from arrest, his 
privilege might often prove whoUy ineffectual ; inasmuch as occa- 
sions may occur, for taking advantage of it, w^hen neither the 
assembly itself, nor the court to which the process is returnable, is 
in session. In aU such cases, application may be made to that 
court or tribunal, whatever it may be, which, in every State or 
country, deriving its institutions from those of England, is author- 
ized to grant relief, by means of the writ of habeas corpus, when 
the personal liberty of the citizen is restrained. Where this mode 
is adopted, the proceedings are the same, of course, as in all other 
cases of habeas corpus. 

594. The first and second of the above-mentioned modes of pro- 
ceeding can only be adopted, ^^hen the assembly itself, or the 
arresting tribunal, is in session ; but, even when in session, their 
jurisdiction is not exclusive. Thus, if the assembly is sitting, at 
the time of the arrest of one of its members, he may apply to it for 

1 Eolliday 4- others v. Pitt, Strange, 11. 985 ; Ecports, L 125 ; Bolton v. Martin, Dallas, L 

Fortescue's Reports, ]65; Cotavn's Reports, 296; Cohin v. Morgan, Johnson's Cases, L 

144 ; Cases Tempore Hardwicke, 25, 33. 415 ; Lewis v. Ehncndorf, Same, II. 222 ; Orej 

* See Barnard \. Mordaunt, Lord Kenyon's v. Russell, Wendell's Reports, IV. 204. 



Chap. II.] peksonal privileges. 239 

relief; if the arresting tribunal is also sitting, he may make his 
application there ; and, notwithstanding he may have it in his 
power to obtain relief by either of these modes, he may, if he 
chooses, resort to some other tribunal or authority, for a discharge 
on habeas corpus. Neither will the jurisdiction of any one of these 
tribunals be taken away or concluded by an adverse decision of 
either or both of the others ; unless it be in the case of a decision 
of the assembly itself, that the person claiming privilege is not 
entitled thereto ; so that if the arresting tribunal refuse to dis- 
charge, the assembly may, notrvvdthstanding, set its member at 
Uberty, or he may be relieved by habeas corpus from some other 
tribunal. 

595. In regard to the evidence necessary to be produced by a 
person entitled to privilege, in order to obtain his discharge, it is 
only necessary to advert to that part of it, which relates to the mem- 
bership of the party, on which his claim to relief is founded. In 
some of the older cases, contained in the English books, it seems to 
have been held, that in the case of members of the house of com- 
mons, the production of the original return was necessary,' but in 
several subsequent cases, of an analogous character, the affidavit 
of the party appears to have been held sufficient;''' and in the few 
cases that have occurred in this country, in which a claim of dis- 
charge has been made on motion, no objection seems to have been 
made to the sufficiency of the proof by affidavit.'^ 

596. It has been made a question, w^hether the election of one 
under arrest, or imprisonment, for a cause embraced within the 
privilege of exemption from legal process, will entitle such person 
to be discharged as a member. This question resolves itself into 
the question whether an arrest for any cause, other than treason, 
felony, or the peace, is a disqualification; for, as it is the highest 
and most essential prerogative of a legislative assembly to be pos- 
sessed of all and every one of its members, it is idle to say, that a 
person is eligible as a member, at a time, when he neither has 
power by law to attend, nor the assembly power by law to compel 
his attendance. Upon the hypothesis, that such a person is eligible 
to election, whilst the assembly has no power to obtain his attend- 



1 See Sir Richard Temple's case; Sidei fin's " See the cases collected in Harrison's Di- 

Reports, I. 192; Keble's Reports, I. 3; IMli- gest, Article " Arrest." 

day V. Fitt, Strange, II. 990; Fortescue's Re- ^ Bolton v. Martin, Dallas's Reports, I. 296 

ports, 165; Comyn's Reports, 444; Cases Colvin v. Morgan, Johnson's Cases, I. 415; 

Temp. Hard. 25, 33 ; Fenwick y. Fenwick, Wva. Lewis v. Elmendorf, Same, 11. 222; Corey v. 

Blackstone's Reports, II. 788. Russell, Wendell's Ref orts, IV. 204. 



240 LEGISLATIVE ASSEMBLIES. [PaRT HI. 

ance, the assembly must either be obliged to submit to an infringe- 
ment of its prerogative, or be compeRed to set aside the election, 
and order a new^ one to fill the vacancy ; and this proceeding would 
be precisely equivalent to a disqualification. The only alternative, 
therefore, seems to be, either to consider an arrest on civil process 
as a disqualification, or to hold that a subsequent election entitles 
the person elected to his discharge. The inconvenience and dan- 
ger, which would result from the establishment of the former prin- 
ciple, have led the house of commons in England to adopt the 
other alternative, and with but a single exception, for more than 
t^^o hundred years,^ to order the discharge of members, who vrere 
in custody before and at the time of their election, in the same 
manner, as if the arrest had taken place afterwards ;2 and, in a 
recent case, the same principle has been recognized and established 
by a decision of the court of king's bench.-^ The reasons upon 
■^''hich these decisions rest, being founded in the principles of strict 
parliamentary law, are equally apphcable, and would probably be 
recognized and applied in this country, as "w^ell as in England. 

597. In England, as has already been seen, the returns on file in 
the crown office, being altered, amended, or taken oS" the files, 
according to the determmation of the house, always show who are 
members entitled to privilege ; but, in this country, as it is not the 
u^age in all or perhaps any of the States, to alter or amend the 
returns, this principle is not true to the same extent. Before the 
meeting and organization of the assembly, the return or its equiva- 
lent is doubtless the best evidence of membership, because it is the 
only evidence upon T^'hich one is allowed to assume the functions 
of a member ; but, after that time, the roll or list of the assembly, 
or a certificate fi-om the clerk, is better; and, whenever a claim of 
privilege is made, it vnR be expedient for the paiiy to be prepared 
V\dth one or another of these kinds of proof, according to the nature 

1 The only case, that I have met mth in ^ PMUips v. Wellesley, Do-svling's Practice 
my mvestigation of this question, in which Cases, L 9; Law Journal, IX., (King's Bench,) 
the house of commons refused to order the 6. In this case, which was decided in the 
discharge of a member, who was under arrest. King's Bench, Nov. IS, 1S30, Par-l-e, J. refer- 
on civil process, at the time of his election, is ring to Burton's case in which he was coun- 
that of FitzJierbert, in 1192, reported by ^Moor, sel, said, that "on searching the precedents 
340, and of which also, D'Ewes gives a fall of the house, it was found, that a person in 
account in his journal, 479. custody, though after final judgment, was 

- See Comm. Jour., (March 25th and May entitled to be discharged, on being elected a 

5th, 1690,) X. 556, 401, 411; Same, (10th and member. The speaker issued his wan-ant, 

15th Nov. and 16th Dec. 1707,) XV. 396, 400, and Mr. Burton was discharged; but I have no 

466; Same, (6th and 7th July, 1807,) LXII. doubt, that he was entitled to be discharged 

635, 636, 642, 644, 653 ; and the precedents by this court." 
aiul observations in HatseU's first volume. 



Chap. II.] ' peroOnal privileges. 241 

of his case, and to the time when he finds it necessary to avail him- 
self of his privilege. It will be sufficient, however, in all cases, 
when the assembly has been once organized, to prove, that the per- 
son claiming the privilege has acted in the capacity of a mem- 
ber.i 



Section II. — Exemption from Service as Jurors or Witnesses. 

598. The privileges of exemption from serving on juries, and from 
attending as witnesses, though well established according to the 
common parliamentary law,^ are mentioned in none of the consti- 
tutions, and in but few of the laws of the several States. Mr. 
Jefferson places these privileges on the ground, that " the privilege 
from arrest privileges of course against all process the disobedience 
to which is punishable by an attachment of the person ; as a sub- 
poena ad respondendum, or testificandum, or a summons on a jury ; 
and with reason, because a member has superior duties to perform 
in another place." ^ It may be true, perhaps, as a general principle, 
that the privilege from arrest privileges against aU process, the dis- 
obedience to which is punishable by an attachment of the person ; 
and though this principle may relieve the party from aU restraint of 
his person, yet this alone is not enough to protect one against other 
consequences, resulting from non-attendance as a juror or witness, 
as, for example, the imposition of a fine in the first case, or the 
action of the party for damages in the second ; and, consequently, 
these privileges, in order to be effectual, must rest upon a broader 
ground, than the mere exemption from process ; and this can only 
be found in the general principle of parhamentary law, by which 
the members of a legislative assembly are protected from all the 
consequences of refusing to attend as witnesses or serve as jurors. 

599. Serving as a juror would, in general, be likely to withdraw 
a member from his attendance as such for a considerable length of 
time ; and this might also be the consequence, in some instances, 
of attending as a Mdtness ; but, frequently, the attendance of a 
member may be dispensed with in the assembly, without detriment 
to the public interest, for a sufficient length of time to enable him 
to give his testimony as a witness. It is consequently the practice 
in such cases, for members to obtain leave of absence for the pur- 

1 Greenleaf on Evidence, I. 83, 92, s Manual, Sec. III. 

"Hatsell, I. 112, 118, 171, 173; D'Ewes, 
637; Dwarris, I. 103, 105. 

21 



242 LEGISLATIVE ASSEMBLIES. • [PaIIT III 

pose of attending elsewhere as witnesses ; ^ or for the court, in which 
the cause is pending, to request by letter the assembly to aUow 1he 
member to attend.^ So, when the testimony of a member or officer 
of either house is wanted in the other, leave is first obtained from 
the house, of which such person ^ is a member.^ 

600. The duration of these privileges must necessarily be the 
same, in each State, as the privilege therein against legal process ; 
and the same modes of proceeding may be adopted in taking ad- 
vantage of them, with a view to relief from personal restraint. 



Section III. — Freedom of Debate and Proceeding. 

601. Freedom of speech and debate has always been enjoyed by 
the members of both houses of the British parliament ; as one of 
their most ancient and necessary rights and privileges, and entkely 
essential to the free and independent exercise of their functions. 
This privilege, though originally intended as a protection against 
the power of the crown, has always been equally effectual to protect 
the members against the attacks of their feUow-subjects. After 
many controversies between the two houses themselves, or one of 
them and some other court or authority, it was finally settled at the 
revolution, and expressly declared by the bill of rights, as one of the 
fundamental liberties of the people, that " the freedom of speech 
and debates, and proceedings in parliament, ought not to be im- 
peached or questioned, in any court or place out of parhament." 

602. In this country, this privilege has been expressly declared 
by constitution, in favor of the members of aU our legislative assem- 
blies, except those of Virginia, North Carolina, South Carolina, 
Mississippi, Iowa, Texas, and California, in substantially the same 
form as above stated, and with the same legal effect ; though, in 
generalj somewhat more tersely expressed, the language being for 
the most part, that " for any speech or debate, in either house, 
members shall not be questioned in any other place." In the States 
above mentioned, there does not appear to be any provision of con- 
stitution on this subject ; but the constitutions of Mississippi and 

1 J. of H. 29th Cong. 1st Sess. 757, 758, 759; * J. of S. IV. 259; J. of H. 14th Cong. 1st 
J. of S. 29th Cong. 1st Sess. 50; Eeg. of Deb. Sess. 637; J. of S. 15th Cong. 2d Sess. 192^ 
Vin. Part 1. 802; Cong. Globe, XV. 769. 195; J. of H. 15th Cong. 2d Sess. 216; J. of S. 

2 ^(«i?ion V. i/ortin, Dallas's Reports, I. 296. 14th Cong. 1st Sess. 407, 410; Same, 22d 

3 J. of H. 14th Cong. 1st Sess. 605; J. of S. Cong. 1st Sess. 370; Eeg. of Deb. VIU. Part 
15th Cong. 2d Sess. 192, 195 ; J. of H. 15th L 802- 

Cong. 2d Sess. 216 ; J. of S. 14th Cong. 1st 
Sess. 407. 



Chap. IL] personal privileges. 243 

Iowa, after conferring certain specified powers and privileges upon 
the houses of their legislative assemblies, contain a general grant to 
them of all other necessary powers ; and, in South Carolina, the 
existence of the privilege, as a constitutional one, is only to be 
inferred from its being therein made a punishable offence to threaten 
harm to any member, for any thing said or done in the house of 
which he is a member. There can be no doubt, however, that 
according to the principles already laid down,^ the privilege of free- 
dom of speech and debate exists in these States as fully and effect- 
ually, as if it had been expressly provided. 

603. The privilege, secured by this constitutional provision, 
though of a personal natm-e, is not so much intended to protect the 
members against prosecutions, for their own individual advantage, 
as to support the rights of the people, by enabhng their representa- 
tives to execute the functions of their office, without fear either of 
civil or criminal prosecutions ; and therefore it ought not to be 
construed strictly, and confined strictly within the literal meaning 
of the words in which it is expressed, but to receive a liberal and 
broad construction, commensurate with the design for which it is 
established. It is accordingly held, that this privilege secures to 
every member an immunity from prosecutions for any thing said or 
done by him, as a representative of the people, in the exercise of 
the functions of that office ; whether such exercise is regular accord- 
ing to the rules of the assembly, or irregular and against their rules ; 
whether the member is in his place \\athin the house, delivering an 
opinion, — uttering a speech, — engaging in debate, — giving his 
vote, — making a written report — communicating information either 
to the house or to a member ; or, whether he is out of the house, 
sitting in committee, and engaged in debating or voting therein, or 
in drawing up a report to be submitted to the assembly ; in short, 
that the privilege in question secures the members of a legislative 
assembly against all prosecutions, whether civil or criminal, on 
account of any thing said or done by them, during the session, 
resulting from the nature and in the execution of their office. It is 
hardly necessary to add, that as a legislative assembly has no exist- 
ence or authority, as such, except when regularly in session, the 
members cannot claim this privilege for any thing said or done at 
any other time. It is to be observed, however, that mere temporary 
adjournments, for the convenience of the members, and not for the 

1 Ante, § 542, 543, 544, 545. 



244 LEGISLATIVE ASSEMBLIES. [PaRT IIL 

purpose of putting an end to the session, are in fact continuations 
and not terminations of it.^ 

604. But though a member in the exercise of the functions of his 
office may speak, write, or vote, in any manner that he deems 
proper, and may consequently give utterance, with impunity, to what 
would subject a private person to a prosecution for libel or slander ; 
yet he will not therefore be justified in printing and publishing 
what he has spoken, if it contains matter injurious to the character 
of an individual ; ^ not even if the publication is intended to correct 
a misrepresentation contained in a report of his speech previously 
published without his authority or sanction.^ 

Section IV. Privilege of Frafkotg. 

605. The last personal privilege, to be noticed, is that of send- 
ing and receiving letters and other communications of a similar 
natm-e, through the public post-office, free of postage ; a privilege, 
which has been enjoyed by members of parliament in England, for 
many years, at first by the indulgence of the crown, but now by 
law.''^ In this country, the franldng privilege is usually conferred, 
by law, upon the members, and certain of the officers, of both 
branches of the congi-ess of the United States, upon the delegates 
of territories in the lower branch, and upon such other persons, as 
congress may choose to compliment in that manner ;5 that body 
having exclusive jurisdiction, by the constitution, to establish post- 
offices and post-roads. It is a breach of privilege to counterfeit or 
forge a frank. When a member or officer desires to make use of 
this privilege, he writes his name and the title of his office on the 
back of the letter, over the superscription, sometimes mth the addi- 
tion of the word " free." 

Section V. Personal Disabilities incident to Membership. 

606. It seems proper, by way of supplement to the subject of 
the personal privileges of members, to take some notice of the dis- 
abilities to which they are subjected by the federal and by many 

1 Appendix X. lege. The fi-anking privilege in England, it is 

- The King v. Lord Abingdon, Espinasse's believed, has lately been abolished by law, 

Reports 226. except in regard to sending certain parlia- 

3 The King v. Ci-eevy, Maule & Selwyn's mentary papers through the post-office during 

Reports, I. 273. the sitting of parliament. See May, 398. 

* See Dwarris, 1. 107, and Pari. Hist. XXIIL ^ Gordon's Digest, section 990. 
56, for the history of the origin of this privi- 



Chap. III.] collective privileges. 245 

of the State constitutions, as a consequence of their official char- 
acter. 

607. The constitution of the United States provides, that no 
member during the time for which he is elected shall be appointed 
to any civil office, under the authority of the United States, which 
shall have been created, or the emoluments of which shall have been 
increased, during such time. A similar provision is inserted in the 
constitutions of Pennsylvania, Delaware, New Jersey, and Mary- 
land; and also in those of Maine, Virginia, Alabama, Indiana, 
Louisiana, Kentucky, and Missouri, with the addition of an excep- 
tion of such offices as may be filled by elections by the people. In 
Kentucky and Louisiana, Mississippi and Ohio, the same disability 
is extended for one year beyond the term of office.^ 



CHAPTER THIRD. 

0"F THE COLLECTIVE OR AGGREGATE PRIVILEGES OF A LEGISLA- 

TIVE ASSEMBLY. 

608. Where the collective privileges of a legislative assembly 
are invaded, the means of enforcing them are various, according to 
circumstances. K private persons are the offenders, they may be 
punished for a contempt ; and so in some cases, where they have 
an official character. But where the parties concerned are beyond 
the reach of the assembly, it can do nothing more than to protest 
against the breach of privilege, and, also, if it thinks proper, suspend 
all its own functions, until the cause has been removed, or it has 
received satisfaction. 

609. Where the breach of privilege is also an offence against the 
laws, and cognizable by the ordinary tribunals, as by assaulting a 
member, or Ubelling the assembly, there may be a prosecution at 

'^ See Story's Commentai-ies on the Consti- genuous mind to afford any proofs, that the 

tutioR, II. \ 330, 331, 332, for some interesting absence of such a disqualification has ren- 

and judicious observations on the subject of dered State legislation less pure, or less intel- 

these disabilities of members. The author ligent; or that the existence of such a dis- 

concludes with the following remark: "The qualification would have retarded one rash 

history of our State governments, (to go no measure, or introduced one salutary scruple 

further) will scarcely be thought by anv in- into the elements of a popular or party strife." 

21* 



246 LEGISLATIVE ASSEMBLIES. [PaET III. 

law, as well as a proceeding and punishment by the assembly 
itself. 

610. The rights and immunities, incident to or conferred upon a 
legislative assembly, considered as an aggregate body, are founded 
in the same general reason, upon which those of the individual 
members rest, namely, to enable the assembly to perform the func- 
tions with which it is invested, in a free, mteUigent, and impartia. 
manner. 

611. The privileges of this kind, which belong to each branch of 
a legislative assembly, may be classified and arranged under the 
following heads, namely : — 

1. To judge of the returns, elections, and qualifications of its 
members : 

2. To choose its own officers and remove them at pleasure : 

3. To establish its own rules of proceeding: 

4. To have the attendance and service of its members : 

5. To be secret in its proceedings and debates : 

6. To preserve its own honor, dignity, pmit\^, and efficiency, by 
the expulsion of an unworthy, or the discharge of an incompetent, 
member : 

7. To protect itself and its members from personal violence : 

8. To protect itself and its members from hbellous and slander- 
ous attacks : 

9. To protect itself and its members from corruption : 

10. To require information touching public affairs, from the 
public officers : 

11. To reqmre the opinion of the judges and other law-officers, 
on important occasions : 

12. To investigate, by the testimony of witnesses or otherwise, 
any subject or matter, in reference to which it has power to act; 
and, consequently, to protect parties, witnesses, and counsel, in 
their attendance, v\' hen summoned, or having occasion to attend for 
that pm-pose: 

13. To be free from all interference of the other coordinate 
branch, and of the executive and judiciary departments, in its pro- 
ceedings on any matter depending before it. 

1, 2. Elections; Officers. 

612. It is not only a principle of parliamentary law, but is 
declared also in the greater number of our constitutions, that every 
legislative assembly is to be the sole and exclusive judge of the 



ClIAP. III.] COLLECTIVE PRIVILEGES. 247 

returns, elections, and qualifications of its own members. The 
same thing may be said of the choice and removal of its own 
officers. These subjects have already been sufficiently treated of 
elsewhere. 



3. Rules of Proceeding. 

613. In addition to what has already been incidentally stated 
concerning the rules of proceeding which are in use in our legisla- 
tive assemblies, it may be remarked here, that, in all the American 
constitutions, except those of North Carolina and Georgia, it is 
expressly provided, that each assembly shall determine the rules of 
its proceeding. Two important diiferences, between the two 
houses of the British parliament, and our legislative assemblies, in 
respect to the rules by which they are respectively governed, seem 
to result from the establishment of this principle. The first is, that 
the system of standing orders, by which one house of parliament 
binds its successors, does not prevail here at aU. The other is, that 
each assembly, until it adopts rules and orders for itself, (and it 
usually adopts those of its predecessors,) is without any other rules 
for its government, than those which result from the common par- 
liamentary law.^ 

614. The principle, that each branch of a legislative assembly 
has a right to determine its own rules, is deemed so important that 
where it is inserted in the constitution of a State, it has been 
doubted, whether it was competent for the legislature of such State, 
by law, to provide rules for the government of its respective 
branches, which should bind them and supersede their authority to 
make rules for themselves.^ 

4. Attendance and Service of its Members, 

615. This subject, so far as relates to the right and duty of 
members to attend, has been already considered ; and it has been 
seen, 1hat members are privileged, to a certain extent, against all 
detentions by means of legal process, by which they would be with- 
drawn from the performance of their duty in this respect. But this 
personal privilege is subordinate to that of the assembly itself; it 
cannot be waived without the consent of the assembly ; and, when 
a member is improperly detained, not only may he himself insist 

1 The subject of rules and orders is treated « COng. Globe, XXL 1372, 1373. 
at at length in the fourth part. 



248 LEGISLATIVE ASSEMBLIES. [PaRT IJI. 

upon his privilege, but the assembly of which he is a member may 
send for and set him at liberty, by its own officers, and may also 
punish as for a contempt all persons privy to or engaged in such 
detention. 

616. It seems formerly in England to have been considered the 
privilege of the houses of lords and commons, to be previously 
informed of the case of a member, about to be arrested for a cause 
to which his privilege did not extend, before the arrest took place, 
in order that the house might judge of the fact and of the grounds 
of the accusation, and how far the manner of the trial might con- 
cern their privileges ; for the reason, that otherwise " it would be 
in the power of other branches of the government, and even of 
every private man, under pretences of treason, etc., to take any man 
from his service in the house, and so as many, one after another, as 
would make the house what he pleased ; " ^ and the propriety of this 
manner of proceeding has been repeatedly recognized by the 
several temporary statutes for suspending the habeas corpus act; 
by which it is provided that no member of either house shall be 
detained, until the matter of which he stands suspected shall have 
been first communicated to the house of which he is a member, and 
the consent thereof obtained for his commitment or detention.^ 

617. But, since the revolution, however, whenever the king or 
any of his ministers, or persons employed by him, finds it necessary 
for the pubKc service to put a member of the house of commons 
under arrest ; or that in any public inquiry, matter comes out, 
which may tend to affect the person of a member, or to require the 
seizure of his papers ; it has been the uniform practice immediately 
to acquaint the house of commons, that they may knov/ the reasons 
for such proceeding, and take such steps as they may think proper ; 
and HatseU adds, that as there is no privilege,. of which the house 
of commons has been or ought to be more jealous, than the 
security of the persons of the members, " that they shall be under 
no undue restraint from being able to attend their duty in parlia- 
ment," it is highly expedient, that whenever the public necessity 
appears to the ministers of the crown to justify any breach of this 
privilege, they should as soon as possible acquaint the house with 
the steps they have taken, and the grounds and reasons which 
induced them thereto.^ 

618. From the uniform practice to the contrary, it appears that 

1 Jefferson's Manual, § 3. s Hatsell, II. 365. 

^Dwarris, 1, 9, 8j Blackstone's Comm. I. 
167; Hammond, 72. 



Chap. III.] collective privileges. 249 

the house of commons has not for a long course of years insisted 
upon being notified of the case prior to the arrest ; and, probably, 
at the present day, nothing more than a simultaneous or imme- 
diately subsequent communication would be held requisite. This 
course of proceeding, though extremely proper, has not, it is 
believed, been considered necessary in this country. 

619. The exceptions to the privilege from arrest being of such a 
nature, that a member, if guilty, would be unworthy to continue 
such, a very proper course of proceeding on the part of the assem- 
bly, in the case above supposed, would be to institute an inquiry 
into the cause of the arrest or detention, and either to take meas- 
ures to procure his discharge therefrom, or to expel him, according 
to the circumstances of the case. In this way, the rights of the 
assembly itself, and of the constituents of the member, might both 
be preserved, and the course of public justice subserved, at the 
same time. 

620. When any of the members of a legislative assembly are 
improperly arrested, and detained by force, or otherwise, against the 
rights and privileges of the assembly, and in such a manner that 
neither they themselves, nor the assembly, can effect their dis- 
charge, the only course for the assembly to pursue is to suspend all 
business until they are restored; and this has been frequently done 
by the house of commons, in England, when its members have been 
detained, and before the revolution in this country, in analogous 
cases, by the colonial or provincial legislatures. 

^2\. If a member absents himself, without leave, or continues his 
absence, after his leave has expired, he may be brought in by the 
sergeant-at-arms, by order of the house, and compelled to give his 
attendance ; and if contumacious, he may be expelled, and give 
place to a successor, who better understands, and is more willing 
to do, his duty. 

622. Cases may happen, however, in which a member is pre- 
sented from giving his attendance for causes not within his own 
power, and for which he cannot be held responsible, as sickness, of 
body or mind, or domestic or other calamity, which withdraws him 
from his attendance. In such cases the ignominious proceeding of 
expulsion ought not to be resorted to, but yet the assembly ought 
to have the services of all its members ; and, therefore, a proper 
course, where the member might not think proper to resign, would 
be to discharge him from his membership, or to declare his seat 
vacant, and order a new election.^ 

1 Post, § 625. 



250 LEGISLATIVE ASSEilBLIES. [PaET IH 

5. Secrecy of Debates and Proceedings 

623. This subject has aheady been considered, in the greater 
part, under the head of proceeding wdth open or closed doors ; ^ 
and, for the same reason, that, according to the theory of legislative 
assemblies, it is one of their essential privileges to be secret in their 
proceedings and debates, and, therefore, to exclude all strangers 
from "witnessing them, no person, whether a member or other person 
accidentally or otherwise present, or any of its officers or servants, 
is allowed to promulgate or publish what is said and done, either 
by speaking, writing, or printing the same, without the leave of the 
assembly. 

624. But this prohibition to publish any account of the proceed- 
ings of a legislative assembly, without pre\"iously obtaining its 
permission, though stiU existing potentially, as it did actually, from 
time out of mind, until about the middle of the last century, is now 
practically abandoned in England, the reporters for daily jomnals 
being alloT\'ed places, by the indulgence of the presiding officers, for 
the exercise of their functions. Li this country, if this restraint can 
be said ever to have had any existence in fact, (though in theory, 
the right to conduct their proceedings, in secret, evidently includes 
a right to resfrain any one from publisliing them.) it is certainly 
abandoned in theory, as well as in fact, in those States where the 
proceedings are required to be in public, except on occasions "when 
secrecy is requisite. In aU the other States, it seems to have been 
practically abandoned. The senate of the United States, which, 
besides being one l^ranch of congress, is also an executive council, 
has never conducted its proceedings in the latter capacity "wdth open 
doors.^ It must be competent, however, to every legislative assem- 
bly to enjoin secrecy, upon its members and officers, as well as others, 
either in respect to a particular matter, or to its proceedings gener- 
ally ; and any breach of its injunction in this respect, or any invasion 
of its right of secrecy will, of course, be punishable as a contempt.^ 

6. Expulsion or Discharge of a Member. 

625. The po-^^er to expel a member is naturally and even neces- 
sarily incidental to all aggregate, and especially aU legislative 
bodies ; ^ which, "without such power, could not exist honorably, and 

1 Ante, § 344 to 353. the case of Mr. Senator Smith, of Ohio, against 

2 Ante, § 343. whom a resolution of expulsion was reported, 

3 See the case of J/r. Senator Pickering, of for his participation m Burr's conspiracy, by 
Massachusetts, J. of S. IV. 536. a committee, of which ilr. John Quincy Ad- 

^ Male, 44. See, in the fourth volume of the ams was chairman. 
Jourxali of the Senate of the United States, 



Chap. III.] collective privileges. 251 

fulfil the object of their creation. In England, this power is sanc- 
tioned by continued usage, which, in part, constitutes the law of 
parliament. It is in its very nature discretionary, that is, it is im- 
possible to specify beforehand all the causes, for which a member 
ought to be expelled ; and, therefore, in the exercise of this power, 
in each particular case, a legislative body should be governed by the 
strictest justice ; for if the violence of party should be let loose upon 
an obnoxious member, and a representative of the people discharged 
of the trust conferred upon him by his constituents, without good 
cause, a power of control would thus be assumed by the representa- 
tive body over the constituent, wholly inconsistent with the free- 
dom of election.^ 

626. The power to expel also includes in it a power to discharge 
a member, for good cause, without inflicting upon him the censure 
and disgrace implied in the term expulsion ; and this has accord- 
ingly been done, in some instances, by the house of commons.^ 

627. Analogous to the right of expulsion, is that of suspending 
a member from the exercise of his functions as such, for a longer or 
shorter period ; which is a sentence of a milder character than the 
^ormer, though attended with somewhat different effects ; for during 
the suspension, the electors are deprived of the services of their 
representative, without power to supply his place ; but the rights of 
the electors are no more infringed by this proceeding, than by an 
exercise of the power to imprison.^ 

7. Protection against Personal Violence. 

628. All attacks upon the persons of the members, or officers, of 
a legislative assembly, or others attending and privileged, as wit- 
nesses and parties, whether by actual violence, or by threats, and 
all disorders, in, near, or about the place of sitting, have been 
always deemed high breaches of privilege and punishable accord- 
ingly. 

8. Protection against Slanderous and Libellous Attacks. 

629. No form of attack, upon the rights and privileges of a legis- 
lative assembly, has been more common, or subjected offenders to 
a severer punishment, than this. When the libel is on the assem- 
bly itself, there can be but little doubt of its authority to punish the 

1 Male, 44. s Comm. Jour. IL 128; Same, VHI. 280; 

« Male, 44. Same, IX. 105; Same, X. 846; May, 55. 



252 LEGISLATIVE ASSEMBLIES. [PaRT III. 

offender ; but, when it is committed against a member, it can 
hardly be considered a breach of privilege, unless it attack him in 
that capacity, or on account of something said or done by him as a 
member.^ 



9. Protection against Corruption, 

630. Bribery or attempts to bribe, or other\^dse improperly influ- 
ence or coiTupt members or officers,^ are high breaches of privilege 
and punishable accordingly. So it is an offence to suborn or tam- 
per with witnesses attending.^ 



10. Right to be informed by Public Officers. 

631. In England, it has always been deemed the right of both 
houses of parliament, (and this right, it is believed, is incidental to 
every legislative assembly,) to call on the officers connected with 
other branches or departments of the government for information 
touching public affau's, sometimes by a direct application, and 
sometimes through the head of the executive department. 

632. In some of the States, it is expressly provided by constitu- 
tion, and, in all of them, it is understood to be the duty of the chief 
executive officer, that the latter shall give information of the state 
of public affairs to the legislature, on their assembling and organiza- 
tion, and from time to time afterwards, as may be deemed proper ; 
and, though this leaves it in some degree discretionary with the 
executive, as to the time, manner, and extent of the communication, 
yet it is the constant practice in aU our legislative assemblies to 
ask for, and for the executive to communicate, information touching 
the public affaks, at any time, during the session of the assem- 
blies. When a communication is made by the executive, without 
being called for by either branch, it is usually addressed to both ; 
though, when the subject of it relates particularly to the functions 
of one, it may be addressed to that one alone ; but it is the right of 
either, without the concurrence of the other, to request information. 

1 For a case of the first description, see the ^ See the case of Whitney and Randall, J. 

proceedings in the case of William Duane in of H. 11. 389 ; and that of John Anderson, J. of 

the senate of the United States, J. of S. III. H. 15th Cong. 1st Sess. 117. 

37; Jefferson's Manual, Sec. III.; see also J. ^ gee the case of William Williams, in the 

of S. 29th Cong. 1st Sess. 191 ; Cong. Globe, proceedings concerning the conduct of the 

XV. 525 ; and for the case of a libellous attack Duke .of York, Hans. (1), XII. 460. 
upon an individual member, see Cong. Globe, 

XV. 457, 458 - ' 



Chap. III.] collective privileges. 253 

In a few of the States, there is a provision of the constitution con- 
ferring upon the governor, for this purpose, among others, the right 
to require information of the officers of the executive department 
upon any subject relating to the duties of their respective offices. 



11. Right to require Opinions of the Judges. 

633. In England, the judges of the superior courts are technically 
considered as assistants in the house of lords, and are summoned 
to attend as such. In this country, the right to call upon the supe- 
rior courts, for their opinions on important questions of law, and on 
solemn occasions, is conferred upon the legislative bodies, by ex- 
press constitutional provision, only in the States of New Hamp- 
shire, Maine, and Massachusetts.^ In the other States, where there 
is no such constitutional provision, the right cannot be considered 
to exist. 

12. Right of Investigation. 

634. It has always, at least practically, been considered to be 
the right of legislative assemblies, to call upon and examine all 
persons within their jurisdiction, as witnesses, in regard to subjects, 
in reference to which they have power to act, and into which they 
have already instituted, or are about to institute an investigation. 
Hence they are authorized to summon and compel the attendance 
of all persons, within the Hmits of their constituency, as witnesses, 
and to bring with them papers and records, in the same manner, as is 
practised by courts of law. When an assembly proceeds by means 
of a committee, in the investigation of any subject, the committee 
may be, and usually is, authorized by the assembly to send for 
persons, papers, and records.^ 

635. Witnesses before a legislative assembly, or a committee, 
are not sworn, unless there is some express provision of law or con- 
stitution, authorizing their examination in that manner ; but they 
give their testimony under the penalty of being adjudged guilty of 
a contempt, and punished accordingly, if they prevaricate, or testify 
falsely. 

1 These opinions, althougli given upon the vided that the house of delegates may inquire, 

arguments of persons interested, which, of on the oath of witnesses, into all complaints, 

course, must be voluntary, are not considered grievances, and offences, as the gi-and inquest 

by the court as binding precedents in actions of the State, and may commit any person for 

subsequently arising. Adamsv. BucMin, Pick- any crime to the public jail, there to remain 

ering's Reports, VII. 125. ixntil discharged by due course of law. 

* In the constitution of Maryland it is pro- 

22 



S54 LEGISLATIVE ASSEMBLIES. [PaRT III 

636. The right of investigation implies that of hearing parties 
and their counsel, as veil as wdtnesses ; and, consequently, the 
house of commons in England has, from the earliest times, exer- 
cised the right of giving the protection and privilege of the house 
to the several persons Avho have been ordered to attend the house 
or committees, or "u^ho, either on public or private concerns, were 
attending the service or business of the house ; and in many of 
such cases, the house has given orders, that such persons, having 
been arrested by process firom the courts of law, should be delivered 
out of custody.^ 

637. There are precedents for the granting of this protection to 
persons attending to prefer or prosecute a private bill,^ or as the 
solicitor of a party,^ to prosecute a petition,'^ to claim a seat as a 
member,^ or to attend an election committee,^ summoned to tes- 
tify as a witness, either before the house, or a committee.^ 

638. In an cases of the above description, if the person privi- 
leged is arrested, he is to be discharged in the same manner, and 
by the same proceeding, as in the case of members ; if not yet 
arrested, but only in danger, he may give information thereof to 
the assembly, and thereupon an order will be passed, that the pro- 
tection of the assembly be allowed to such person, during the 
pendency of the matter or business which entitles him to privilege. 
This order is equivalent to the writ of privilege, gi-anted to parties, 
witnesses, etc., by the ordinary tribunals. It does not seem to be 
necessary in the case of members, whose official character is sup- 
posed to be known to everybody (all persons being bomid to take 
notice of who are members returned of record) ; " but, in the case of 
other persons, it may be of utility in preventing an arrest, or in 
rendering the officer making it liable to an action.^ 



13. Freedom from Interference. 

639. It has been already seen with how much care the parlia- 
mentary law has guarded against aU interference in the proceedings 
of a legislative assembly, on the part of private persons. The same 
jealous watchfulness is also manifested to protect them from all 

iComm. Jour. XL Vm. 424. « Comm. Jour. L 863; Same, VEI. 525; 

2 Comm. Jour. L 766, 702, 921, 924. Same, IX. 20, 366; Same, XII. 304. 

3 Comm. Jour. IX. 472; Same, XXIV. 170. ' Ante, § 554. 

4 Comm. Jour. 11. 72. * See McNeil's Case, Mass. Rep. m. 288, 
s Comm. Jour. XXXIX. 83; Same, XLVm. and Same, VL 264, as to the effect of a T\Tn{ 

426. of privilege. See also Comm. Jour. XLVIII 

406, 423. 



Chap. IV.] incidental poweks. 255 

influence of one another, or of other coi'rdinate departments of the 
government. In England, accordingly, it is held to be a high 
breach of privilege, for the king to interfere in or take notice of any 
proceeding in either branch, except in such manner as he is con 
stitutionaUy authorized to do ; and it is also a high breach of 
privilege for either branch to interfere, in any other than the regular 
and constitutional manner, in the proceedings of the other ; though 
either house, when sending a bill to the other, may signify its wish 
to have it attended to, and may, in the course of business, send to 
the other for information in regard to the state of any bill or other 
matter, in which it has a common concern. The same principles 
prevail here, both as regards the executive, and both branches of 
the legislature. 



CHAPTER FOURTH. 

OF THE INCIDENTAL POWERS OF A LEGISLATIVE ASSEMBLY. 

640. The powers incidental to a legislative assembly, like the 
rights and immunities, which, under the name of privileges, have 
been considered, are such only as are necessary to enable it to 
perform its principal or legislative and administrative functions. 
These powers are of two kinds, the inquisitorial and the judicial. 

641. A legislative assembly being authorized, in the exercise of 
its constitutional functions, both administrative and legislative, to 
institute inquiries into all grievances of the citizen, which are 
remediable by legislative enactment, and into all abuses of power 
by persons in office, with a view either to their removal by address, 
or to their punishment by impeachment, it has a power to investi- 
gate all such subjects, by the examination of witnesses, or other- 
wise, in the same manner, as is practised by grand-juries ; and, as 
a consequence of this authority, the assembly itself, its officers, and 
servants, and all persons connected with every such investigation, 
enjoy a perfect immunity for every thing fairly said, done, or pub- 
lished, in the course of such inquiry. 

642. The other incidental powers of a legislative assembly, being 
more strictly analogous to those exercised by judicial tribunals, con« 
stitute its judicial powers, as distinguished from its legislative; and. 



25Q LEGISLATIVE ASSEMBLIES. [PaRT ill 

accordingly, in the exercise of these functions, a legislative assembly 
is considered as a court, and the journal of its proceedings as a 
record. The judicial powers, anciently claimed and exercised by 
the house of commons, in England, were much more extensive than 
they are at present ; having, in the course of many conflicts with 
the courts, and by the gradual progress of kno^dedge on the subject 
of the separation of the legislative and judicial functions of govern- 
ment, been reduced from a vague, uncertain, and indefinite mass 
of powers to those alone, which are considered necessary to enable 
it to discharge its peculiar functions as the depositary of the legis- 
lative, and, in part, of the administrative power of the State. 

643. The judicial powers,^ exercised by a legislative assembly, 
as incidental to or in aid of its general functions, must be carefully 
distinguished from those which it exercises as a branch of its legis- 
lative duties or in the com-se of the latter. Thus, in the exercise of 
its general functions of administration or legislation, a legislative 
assembly frequently has occasion to pass upon the private rights of 
individuals, in conflict either with those of other individuals, or with 
those of the public. The raihoad legislation of modern times fur- 
nishes abundant example of the exercise of judicial functions of this 
description. So, likev^dse, in the exercise of its supreme and sover- 
eign power, where such power is not expressly restrained, a legis- 
lative assembly may find it necessary to try, convict, and punish 
offenders, out of the common course of criminal jurisdiction, by 
means of acts of attainder, and of pains and penalties. Legislative 
proceedings of this description, though frequent in the earlier periods 
of parliamentary history, have, in modern, times, become extremely 
infrequent ; partly, in consequence of the improvements which have 
taken place in the criminal law and its administration ; but chiefly, 
perhaps, from an un-willingness to administer criminal justice 
through the forms of legislation. In all these cases, the proceed- 
ings are to a greater or less extent judicial, and conducted accord- 
ingly. Judicial functions of this description, not coming under the 
head of incidental powers, will be treated of in another place. 
These functions can only be exercised by the concurrent act of the 
two branches and the consent of the executive. The judicial 
poAi^^ers, which are incidental, are exercised by each branch sepa- 
rately and independently of the other. 

644. In treating of those judicial powers of a legislative assem- 

I In the exercise of its judicial functions, a rules of proceeding. See Eeg. of Deb. VIII 
legislatire body is governed hj its ordinary Part 2, 2548; Cong. Globe, IV. 176. 



Chap. IV.] incidental poweks. 257 

bly, which are now in question, namely, those which are incidental 
to its general functions, it will be convenient to consider, first, the 
jurisdiction ; second, the mode of proceeding ; third, in what man- 
ner the judgments of the assembly are enforced ; and fourth, what 
punishments it may inflict; and, under each head, to state the 
differences, if there are any, between cases in which the proceedings 
relate to members, and those in which they relate to other persons. 



Section I. — Of the Incidental Jurisdiction oe a Legislative 

Assembly. 

645. This jurisdiction, being conferred for the purpose of enabling 
a legislative assembly to discharge its peculiar functions, in a free, 
independent, and intelligent manner, is in its very nature, original, 
exclusive, and final. 

646. It is original, because, being conferred for the benefit of the 
assembly itself, and not for the advantage of any private individual, 
it arises only in reference to matters growing out of the proceedings, 
or connected with the official character of the members of the as- 
sembly. 

647. It is exclusive, because, otherwise, the objects for which it 
is conferred, namely, the freedom and independence of the assem- 
bly, would fail of theu' attainment ; inasmuch as a portion of the 
means, by which the assembly is enabled to perform these func- 
tions, would be restrained, by the concurrent or appellant jurisdic- 
tion of some other tribunal. 

648. But this jurisdiction is not exclusive in any other sense than 
this, that no other tribunal can control the action, set aside the 
judgments, or revise the proceedings, of the assembly ; though, 
whenever any question, which has already been decided by the 
assembly itself, or which belongs within its jurisdiction, arises inci- 
dentally in any other court or tribunal, and for any other purpose 
than that for which it is entertained by, or comes within the juris- 
diction of, the assembly, such tribunal may judge of and decide that 
question, for the purposes of the proceeding in reference to which it 
has arisen. Thus, the assembly is the judge of the election of its 
members, and may consequently, for that purpose, decide upon the 
right of an elector to vote ; but, notwithstanding, an elector, whose 
vote has been refused, by the returning officers, may also bring his 
action against them for damages, for such refusal, and for that pur- 
Dose may establish his right to vote, at law, though the assembly 
may have decided otherwise in determining the election. 

22* 



25S LEGISLATIVE ASSEMBLIES. [PaRT 111. 

649. The jurisdiction of a legislative assembly, acting judicially 
is necessarily final, that is, its proceedings cannot be revised, noi 
its judgment suspended, by any other comt or tribunal. Thus, 
when a member is expelled, no other court can revise the doings of 
the assembly, and reinstate such member in his place. So, if a 
legislative assembly commit a member or other person as a punish- 
ment for a contempt or other offence, no other corn-tor tribunal can 
discharge the prisoner, on the ground of his having been illegally 
committed, provided the cause of the commitment appear with the 
requisite certainty. In cases of this kind, therefore, it should clearly 
appear, in the warrant, that the assembly has jm-isdiction of the 
matter for which the commitment takes place ; but the particular 
facts of the case, upon which the assembly has predicated its 
judgment, should not be stated ; if they are, they will be subject to 
revision. 

650. The jurisdiction of a legislative assembly, as a judicial tri- 
bunal, is both civil and criminal, but chiefly the latter, and for con- 
tempts. 

I. Civil Jurisdiction. 

651. As a civil tribunal, a legislative assembly, at the present 
day, claims and exercises no other jurisdiction, than to decide upon 
the returns and elections of its members, and upon the question of 
their rights as such, as affected by disqualifying circumstances sub- 
sequently arising. Formerly, the house of commons, in England, 
under pretence of privilege, entertained jurisdiction of cases of mere 
civil right, in which members were concerned ; but this com-se of 
proceeding, Tvhich appears to have commenced with the long par- 
liament, and to have terminated only about the year 1768,^ is now 
wholly abandoned. Li this country, no such pretence was ever set 
up, and the only civil jurisdiction of a judicial nature, exercised in 
our legislative assemblies, either before or since the revolution, is 
that of deciding upon the returns and elections of their members. 

2. Criminal Jurisdiction. 

652. The criminal jurisdiction of a legislative assembly is much 
more extensive than the civil ; embracing the misconduct or disor- 
derly behavior of its own members, as weU as misdemeanors and 
offences committed by other persons. In both cases, the offence 

1 Pemberton, 91. See ante, 8, 537. 



Chap. IV.] INCIDENTAL POWERS. 259 

•nay be committed either against the assembly itself, or against its 
members individually. 

653. Members may be guilty of misconduct, either towards the 
assembly itself, towards one another, or towards strangers. Mis- 
conduct of members towards the assembly, besides being the same 
in general as may be committed by other persons, consists of any 
breaches of decorum or order, or of any disorderly conduct, disobe- 
dience to the rules of proceeding, neglect of attendance, etc. ; or of 
any crime, misdemeanor, or misconduct, either civil, moral, or offi- 
cial, which, though not strictly an attack upon the house itself, is 
of such a nature as to render the individual a disgrace to the body 
of which he is a member. Misconduct of members towards one 
another consists of insulting remarks in debate, personal assaults, 
threats, challenges, etc., in reference to which, besides the ordinary 
remedies at law or otherwise, the assembly interferes to protect the 
member, who is injured, insulted, or threatened. Offences by mem- 
bers towards other persons, of which the assembly has cognizance, 
consist only of injurious and slanderous assertions, either in speech 
or by writing, which, as there is no other remedy, the assembly 
itself, if it thinks proper, takes cognizance of and punishes. 

654. The offences against a legislative assembly, which may be 
committed by persons who are not members of it, are exceedingly 
multifarious ; embracing all offences against its members indi- 
vidually, all breaches of privilege, whether personal or collective, 
and all wilful obstructions to its regular proceedings, and to the 
free, independent, and full performance of its various functions. 

3. Jurisdiction of Contempts. 

655. Like every other tribunal, a legislative assembly is author- 
ized to punish persons, whether members or others, who are guilty 
of any contempt towards it, by disorderly or contumacious behavior 
in its presence, or by any wilful disobedience to its orders. It 
seems necessary to observe, that the contempts punishable by a 
legislative assembly are not confined to proceedings in its judicial 
capacity, but may arise in the course of its legislative or other 
functions. 



260 LEGISLATIVE ASSEMBLIES. [PaBT 111. 

Section II. — Of the Mode oe Proceedixg by a Legislative 
Assembly, ix the Exeecise of its Judicial FmfCTioisrs. ■ 

656. It will be most convenient, as well as intelligible, to con- 
sider the mode of proceeding, under the several heads which have 
abeady been adopted in treating of the jurisdiction, namely : — first, 
civil proceedings ; second, criminal proceedings ; and, third, con- 
tempts. 

1. Civil Proceedings. 

657. The only subjects, which come Tvithin the civil jurisdiction 
of a legislative assembly, relate to the rights of members to their 
seats ; in reference to \\^hich, the proceedings are either betv^'een 
parties adversely interested, or ex parte. Cases of the first kind 
arise where a member is returned, and the return, election, or right 
of the member retomed to sit, is controverted by the electors or 
some of them, or by an opposing candidate. Cases of the latter 
kind occur, when an inquiry is instituted by the assembly itself, on 
the motion or suggestion of some member. In the former class of 
cases, which constitute -^^^hat are usually called controverted elec- 
tions, if the proceedings are not otherwise regulated by law, as they 
are in England and in some of the United States, the trial may be 
either at the bar of the assembly, or, in the first instance, before a 
committee appointed for the purpose, and, in either case, the pro- 
ceedings are as closely assimilated, as the nature of the subject "^"ill 
admit, to those which usually take place on the trial of an action 
at law in the ordinary coui'ts ; the parties being commonly assisted 
by counsel, and witnesses examined, as in other cases, except that 
they are not necessarily or perhaps usually upon oath. Where an 
inquiry is instituted ex parte, on the motion or suggestion of a 
member, the subject is generally refen-ed to a committee ; and if the 
right of a member or other person happens to be involved in the 
proceedings, they may assume the form of a controverted election, 
in which case, they will be the same as akeady mentioned ; but, 
where the investigation is one-sided, the committee may examine 
witnesses or arrive at the knowledge of the facts in such other way 
as it may think proper. iMembers, if interested in such investiga- 
tion, are to withdraw from the assembly, after being heard, in the 
manner stated under the head of Criminal Proceedings. 

658. Witnesses may be summoned to appear and give their tes- 
timony, before the assembly, or before a committee, either by a 
warrant from the presiding officer, issued in pursuance of a generaJ 



Chap. I V.J incidental powers. 261 

order previously adopted, authorizing him to send " for persons, 
papers, and records," or in pursuance of a special order to the same 
effect, relating to the particular case or person ; or they may be 
summoned by the special order of a committee, in pursuance of a 
similar general or special order. The summons may be served by 
the sergeant-at-arms, a messenger, or by any other officer, or in such 
other manner, as will be legal in other cases, according to the laws 
of the particular State. ^ 

659. If the person, whose testimony is wanted as a witness, is 
in custody, it is the practice for the presiding officer, by the order 
and dkection of the assembly, to issue his warrant to the officer 
having such person in custody, and to the sergeant-at-arms of the 
assembly, for the production of the witness at the bar, or before the 
committee. When the witness is in the custody of the assembly 
itself, he. may be brought to the bar or before the committee, by an 
order to that effect to Ihe sergeant-at-arms. It is usual, also, where 
the testimony of a witness in the custody of the sergeant is wanted 
before a committee, for the assembly to order, that when the 
committee requires the attendance of the witness, it may send for 
him.^ 

660. With regard to the expenses of the witnesses, the rule in 
legislative assemblies is analogous to that which prevails in courts 
of law, not to compel a witness to give his testimony, until his rea- 
sonable charges have been paid or tendered.'^ Where a witness is 
summoned on the behalf and at the request of an individual, such 
party is bound to pay the expenses ; but where the investigation is 
ex parte, he can only receive payment of his expenses, in the same 
manner that government witnesses are paid according to the laws 
of the particular State. In all cases, however, it seems, that wit- 
nesses are bound to appear, in obedience to the summons, without 
being previously paid their expenses.^ 

661. The only difference, between the examination of witnesses, 
before a legislative assembly or committee, and their examination 
before other tribunals, is, that in the former, the testimony is not 
usually given under oath ; a legislative assembly, unless there is 
particular provision to that effect by law, not being authorized to 
administer oaths.'^ Whether, however, the testimony is given 
under oath or not, if a witness prevaricates, testifies falsely, or other- 

1 The subject of witnesses, which is here ' Rogers, 87. 

and elsewhere in this chapter mentioned, only * Rogers, 88. 

incidentally, is fully treated of in the fifth part. ^ This power is expressly conferred by the 

* Rogers on Election Committees, 86. constitution of Vermont. 



262 LEGISLATIVE ASSEMBLIES. [PaUT III 

wise misbehaves himself, in giving or refusing to give his testimony, 
he will be guilty of a contempt, and punishable accordingly. K 
such misbehavior occm's at the bar of the assembly, the ojSfender 
may be proceeded against at once ; if, before a committee, it must 
first be reported to the assembly, for its interposition. 

662. K a witness, being duly summoned, in either of the modes 
above mentioned, refuses or neglects to appear, and such refusal or 
neglect is made manifest to the assembly, by the non-.appearance 
of the -udtness at the time appointed, or upon the report of the com- 
mittee, the Vidtness maybe ordered to be taken into custody by the 
sergeant-at-arms, and ^Adll also be punishable as for a contempt. 

663. Parties and witnesses, attending as such, or having occa- 
sion, or ordered, to attend as such, before a legislative assembly or 
its committees, are entitled to the same protection m going, staying, 
and returning, as they would receive in a com-t of law ; and, if 
arrested, will be entitled to then- discharge m the same manner as 
members, and by the same form of proceeding. When they are 
apprehensive of an arrest, and make that fact known to the assem.- 
bly, it is usual for that body to order that its protection be allowed 
to such persons, dm-ing the pendency of the business which entitles 
them to privilege, or then- necessary attendance as wT.tnesses.i 

2. Criminal Proceedings. 

664. The conduct of members may become implicated either 
incidentally m the com-se of other proceedings, or it may be the 
subject of a dh'ect complaint, verbal or in writing, by other mem- 
bers, or by other persons ; and, in all these cases, the proceedings 
do not differ essentially from w^hat they would be in the case of 
private persons, except that it is not necessary, in ah cases, to place 
the member accused at the bar. When a complaint is to be made 
against a member, it appears to be the practice to give him notice 
beforehand,'- or to procm-e an order to be passed, requiring his 
attendance at a pai-ticular time to hear the complaint, and other- 
wise not to make it in his absence. Where the member remains 
in his place in the assembly, dming the prehminary proceedmgs, it 
is the rule, that when the question is stated in the assembly, the 

1 As to the effect of these orders of protec- thereupon, at the suggestion of the chauTuan, 

tion see ante, 638, note. an order -was passed for the attendance of Mr, 

« In the case of Mr. Senator Smith, the com- Smith in his place. Ann. of Cong. 10th Cong, 

jiittee to whom his case was referred, gave 1st Sess. I. 39, 56. 
notice when they were ready to report, and 



Chap. IV.] incidental powers. 26S 

member implicated should be first heard, and then withdraw from 
the assembly, until the question is decided. This is the established 
practice in the house of commons, and is founded in the indecency 
of a man's sitting as a judge in his own cause. If the member does 
not withdraw of his own accord, he may be ordered to do so by the 
assembly. K the case be not perfectly clear, as to the propriety of 
a member's withdi-awing, he may himself make a question to the 
assembly for their opinion. 

665. But where the immediate question before the assembly is 
not the one in which a member is interested, but only relates to the 
time at which that question is to be tried,^ or is a mere question of 
order involving the precedence of business, with relation thereto,^ it 
has been held in this country that such member may nevertheless 
vote thereon. 

666. When, in consequence of words spoken in debate, or in the 
course of any other proceeding of the house, or of a committee 
either select or of the whole or otherwise, a quarrel arises betw^een 
members, which the speaker sees may lead to injurious results, it is 
his duty to interfere at once without waiting for the previous 
authority of the house, and, by means of a retraction or apology, 
compel such members to settle their quarrel immediately, or, by 
ordering them into the custody of the sergeant-at-arms, prevent 
them from leaving the house until they pledge themselves that the 
quarrel shall go no further.-^ The propriety of this course is stUl 
more manifest where the parties, as sometimes happens, resort to 
blows or other acts of violence.'^ The speaker, instead of proceed- 
ing at once, of his own authority, or the implied sanction of the 
house, may wait for it to take or indicate such course as it may 
think proper. The former method is most generally adopted by the 
speaker of the house of commons ; the latter has been most com- 
monly pursued by presiding officers in this country. The sending 
of a challenge by one member to another, or by any person to a 
member, for words spoken by the latter in debate, is a breach of 
privilege, and will be dealt with accordingly, unless a fuU and am- 
ple apology is offered to the house and to the member offended.'^ 

667. The most usual course of proceeding, where a person not a 
member has been guilty of some misconduct, of which the assembly 
has judicial cognizance, is, in the first place, upon the complaint or 

» J, of H. 26th Cons:. 1st Sess. 12S3. ■* See J. of H. 30th Cong. 1st Sess. 536; 

2 Cong. Globe, VIII. 531. Cong. Globe, X. 451; Cong. Globe, XIII. 57?' 

» Miiy, 258. s ^^y^ 258. See also J. of C. III. 232, 233, 

236. 



264 LEGISLATIVE ASSEMBLIES. [pART IIL 

motion of some member to ascertain the facts, and then to declare 
them to be an offence, and to order the individual implicated or 
supposed to be guilty, into the custody of the sergeant-at-arms. 
"When that officer has informed the assembly, through the speaker, 
that he has the offender in custody, he is brought to the bar of the 
assembly, and being there informed of the charge against him, is 
interrogated as to his guilt or innocence. He is then heard in his 
defence, by counsel, if he desires it, and such subsequent proceed- 
ings are adopted as may be deemed proper. K he refuses to answer 
the interrogatories, he 'wdll be punishable as for a contempt. If he 
denies the facts alleged against him, they may be investigated either 
by the assembly itself, or by a committee. If the proceedings re- 
quhe more than one sitting, the accused is to be retained in the 
custody of the sergeant-at-arms, and brought to the bar whenever 
the assembly may order. Sometimes the supposed offender, instead 
of being ordered into the custody of the sergeant-at-arms, and 
brought to the bar by that officer, is merely summoned to appear 
before the assembly at an appointed time, to answer to the offence 
alleged against him.^ An offender may be discharged, at any time 
upon causing a petition, expressing proper contrition for his offence, 
to be presented to the assembly .^ 

668. When the matter complained of is something published in 
a newspaper, the newspaper must be produced, in order that the 
paragraphs complained of may be read ; and, in one case, in the 
house of commons, where a member, who complained of the man- 
ner in which his speech was published in a newspaper, -was proceed- 
ing to address the house, he M^as stopped by the speaker for the 
reason that he had no copy of the newspaper on which to found 
his complaint. The member, who makes the complaint, must also 
be prepared ^^dth the names of the printer or pubhsher if he intends 
to foUow up his complaint with a motion.^ 

669. According to IMr. May,^ " It is the present practice " in par- 
liament, " when a complaint is made, to order the party complained 
of to attend the house ; and on his appearance at the bar, he is 
examined and dealt with according as the explanations of his con- 
duct are satisfactory or otherwise ; or as the contrition expressed by 
him for his offence conciliates the displeasure of the house. K there 

1 See the proceedings of the senate of the Houston, for an assault on WilHam Stanbury, 

United States, in 1800, against William Duane a member, 

for a libel on the senate, published in the ^ May, 94. 

Aurora; and the proceedings of the house of ^ May, 88, 89. 

representatives, in 1832, in the case of Samuel * May, 8S. 



Chap. IV.] incidental powers. 265 

be any special circumstances arising out of a complaint of a breach 
of privilege it is usual to appoint a select committee, to inquire into 
them, and the house suspends its judgment until their report has 
been presented." 

670. If there are, in the particular State, by the authority of 
whose legislative assemblies a commitment takes place, any consti- 
tutional or legal provisions relating to the subject of criminal com- 
mitments generally, it will be safest to follow such provisions ; but 
the warrant should only state the fact of the offence, in general 
terms, in order to show that the assembly has jurisdiction of it 
withoxit setting forth the particular facts, which are supposed by the 
assembly, to constitute the offence. 



3. Proceedings in case of Contempt. 

671. A contempt of the authority of a legislative assembly may 
be committed either in or out of its presence. In the former case, 
it may be either by a person already in custody of the sergeant-at- 
arms, or by some person attending as a party or witness, or as a 
spectator or auditor of the proceedings. Where the contempt is in 
the presence of the assembly, if the offender is not in custody, the 
first thing is to order him to be taken into custody, and then, which 
is also the case where the offender is already in custody, the assem- 
bly proceeds at once, the offence being apparent, to pass such sen- 
tence upon him as it may think proper. 

672. Contempts committed out of the presence of the assembly 
usually consist of disobedience to its orders. In these cases, the 
first step is to adjudge the disobedience a contempt, and then to 
order the offender into custody. He is then brought to the bar and 
interrogated, and such further proceedings had as may be deemed 
proper. Where the offender is a member, the proceedings do not 
differ, except in his being required to withdraw when the question 
is made. 

Section III. In what Manner the Judgments of a Legisla- 
tive Assembly are enforced. 

673. One of the modes by which the orders or judgments of a 
legislative assembly may be enforced, is, to bring the person refus- 
ing or disobeying to the bar, and there require him to submit 
himself to the assembly ; and, on his refusing, in their presence, so 
to do, to punish him as for a contempt. 



266 LEGISLATIVE ASSEMBLIES. [PaET 111. 

674. It was formerly the practice, in both houses of the British 
parliament, to require offenders to receive the judgment of the 
house kneeling at the bar. But the practice has long since been 
discontinued in both houses ; though in the lords, the entries in the 
journals still assume that the prisoners "are on their knees" at 
the bar. In the house of commons, in the year 1750, Mr. Alex- 
ander MmTay obstinately refused to receive his sentence kneeling 
at the bar, and vv^as severely punished for his contempt of the 
authority of the house.^ But, aftei-v^^ards, in 1772, and probably in 
consequence of this refusal, the house ordered, that whenever any 
person should thenceforth be brought to the bar for judgment, or to 
be discharged, he should receive the judgment of the house stand- 
ing, unless, it should be otherwise directed in the order.^ 



Sectiox IV. Of the PmnSHMEXTS which a Legislative 
Assembly mat lntligt. 

675. The punishments, besides the withdrawal of privileges 
conferred,'^ wliich are usually within the competency of a legis- 
lative assembly to inflict, are those of fine, imprisonment, and 
reprimand, to which must be added, where the offender is a member,, 
that of expulsion. 

1. Fine. 

676. In England, both houses of parliament were anciently in 
the practice jof imposing the payment of a fine by way of punish- 
ment ; and this is understood, at the present day, to be the practice 
of the lords ; but the commons appear to have long since waived 
or abandoned this form of punishment ; and it has even been laid 
down that they now have no such power. In this country, with 
one or tv^^o exceptions, in which there is a special constitutional 
provision to that effect, the legislative assemblies are not authorized 
to impose a fine by way of punishment. The house of commons, 
however, does, in some sort inflict a fine ; persons in the custody 
of the sergeant-at-arms being usually required, before being dis- 
charged, to pay the fees of that officer. Where this punishment is 
inflicted, the order is that the offender pay such a sum, and, in the 
mean time, stand committed to the custody of the sergeant-at-arms. 

1 Comm. Jonr. XX^a. 48; Hans. P. H. XIV. ^ ^g for example that of a reporter. J of 
894; Walpole's Memoirs of Geo. H. 15. H. 24th Cong. 1st Sess. 983, 1020, 1021. 

2 Comm. Jour. XXXTH. 594. 



CKAP. IV.] INCIDENTAL POWERS. 267 



2. Imprisonment. 

677. This mode of punishment is, in general, the only one now 
authorized or resorted to, in ordinary cases, by legislative assem- 
blies. According to the parliamentary law of England, 1here is a 
difference between the lords and commons, in this respect, the 
former being authorized, and the latter not, to i mprison for ^ajjeriod 
beyond the session. In this country^ the power to imprison is 
either incidental to or expres^sly conferred upon all our legislative 
assemblies ; and" iii some of the States, it is also regulated by 
express constitutional provision. "Where it is not so regulated it is 
understood, that the imprisonment terminates with. the session. ~^ 

678. Where there is no provision regulating the time of impris- 
onment, if a commitment is general, the prisoner will be entitled to 
his discharge on the termination of the session ; if it is for a certain 
time, the prisoner will be entitled to his discharge on the expiration 
of the time, or the termination of the session, whichsoever first 
happens. 

679. Where the time of imprisonment is regulated and limited, 
a commitment for any period not exceeding that time may be 
made, notwithstanding the termination of the session in the mean 
time ; but, if a commitment is general, ^^dthout limitation of time, 
the case must be deemed the same, as if it had been for the utmost 
limit of time, and such commitment will accordingly terminate 
either with the expiration of that time, or with the session. 

680. Where this form of punishment is adopted, a warrant is 
issued by the presiding officer, by order of the assembly, reciting 
the judgment or order of the assembly, and directing the sergeant- 
at-arms, to commit the prisoner to such a prison, and the keeper 
thereof to receive him into his custody, and safely keep him to the 
expiration of the sentence. 

681. In the house of commons, when an offender is punished by 
imprisonment, the form of the sentence is, that he be committed to 
the custody of the sergeant-at-arms, or to Newgate, or the Tower, 
during the pleasure of the house ; and the practice is, to keep offend- 
ers, so committed, in custody, until they present petitions praying 
for their release, and expressing contrition for their offences, or, 
until upon motion made in the house, it is resolved that they shall 
be discharged. They are then to be brought to the bar, and after 
an admonition or reprimand from the speaker, are discharged oij 



J s^' 



268 LEGISLATIVE ASSEMBLIES. [PaRT III. 

the payment of their fees.^ Under peculiar circumstances, how- 
ever, attendance at the bar,^ and the admonition or reprimand,^ 
have been dispensed with, and the payment of fees remitted.* 



3. Reprimand. 

682. "Where this form of punishment is inflicted upon a person 
who is not a member, the offender is brought to the bar of the 
assembly, by the sergeant-at^arms, and there reprimanded by the 
presiding officer, in the name, and by the authority of the assembly. 
The offender is then discharged. Where the offender is a member, 
he receives the reprimand standing in his place. Admonition may 
be considered as a mild form of reprimand. What is said by the 
presiding officer on these occasions, is usually ordered to be entered 
on the journal. 

4. Expulsion. 

683. The three forms of punishment already mentioned may be 
inflicted upon all persons, whether members or not ; but expulsion 
can only be infficted upon members. Where no provision is made 
relating to this subject, expulsion takes place in the same manner 
with any other proceeding. In some of the constitutions, there are 
express provisions upon this subject, which in those States, of 
course, must be observed. 



Section" V. In what Manner and to what Extent the Inci- 
dental Powers of Legislative Assemblies in the United 
States have been affected by Constitutional and Legal 
Provisions. 

684. The constitutions of the United States, and of almost all 
the States, contain provisions relating to the incidental powers of 
their legislative assemblies, which, although widely differing among 
themselves, in some cases, as to the number of powers enumerated, 
come clearly within the first two rules ^ already mentioned in regard 
to the privileges of members, and do not, in any degree, change, 

1 May, 94. * Coram. Jour. LVIIL 221 ; Same, LXXX. 

2 Coinm. Jour. LXXV. 467. 470; Same, LXXXIIL 199; Same, XG. 532; 

3 Comm. Jour. LXXXVI. 333; Same, XC. Same, LXXIV. 192; LXXXV. 465. 
ft32; Same, CL 768. 5 Ante, 542, 543. 



Chap. IV.] incidental powers. 269 

either by enlarging or diminishing, the powers of jurisdiction recog- 
nized by the ordinary parliamentary law. The only changes, made 
by these provisions, relate to the kind, form, and duration of the 
punishments to be inflicted. It may be laid down, therefore, first, 
that every legislative assembly in the United States possesses all 
the powers of jurisdiction, in a judicial way, which are recognized 
by the common parliamentary law ; and, second, that they possess 
authority to punish agreeably to the rules of that law, as modified by 
express constitutional or legal provision. It only remains, there- 
fore, to state these modifications ; first, those which relate to the 
members themselves, and, second, those which relate to other 
persons. 

Article I. Incidental Powers relating to Members. 

685. In aU the constitutions except those of New Hampshire, 
Vermont, Massachusetts, New York, North Carohna, Michigan, 
and California, there is inserted an express provision authorizing 
each branch of the legislature thereby established, " to punish its 
members for disorderly behavior ; " to which the constitution of 
Khode Island adds a general authority to punish for contempt, and 
that of Maryland the word " disrespectful." 

686. In the constitution of New Hampshire the power to punish 
members appears to be included in that of punishing generally; 
that of Vermont, after enumerating certain powers, declares, of the 
general assembly, that " they shall have all other powers necessary 
for the legislature of a free and sovereign State ; " whilst those of 
Massachusetts, New York, North Carolina, Michigan, and Cali- 
fornia, are altogether silent on the subject. In aU these States, 
therefore, members of the legislative assemblies are amenable to 
their respective houses according to the principles of the common 
parliamentary law. 

687. In the States of Massachusetts, New Hampshire, New 
York, and North Carolina, there being no constitutional provision 
on this subject, the power to expel exists, as a necessary incident 
to every deliberative ^ body, and may be exercised at the discretion 
of the assembly, and in the usual way of proceeding. 

688. In the constitutions of the United States, and of aU the 
other States, the power to expel is expressly recognized and 
declared ; but, in aU of them, except those of Vermont and Geor- 

1 It does not belong to every collective body tee, or a board of trustees or bank directors, 
which deliberates, as for instance, i\. commit- or oth'jr similar officers. 

23* 



270 LEGISLATIVE ASSEMBLIES. [PaET III. 

gia, in which the usual majority only is required, the concurrence 
of t\\^o thirds is necessary. In fllinois, Michigan, Missouri, and 
Wisconsin, two thu'ds of all the members elected are requisite to a 
vote of expulsion. 

689. In the constitutions of Maine, Rhode Island, Connecticut, 
Pennsylvania, Maryland, Virginia, South Carolina, Florida, Ken- 
tucky, Tennessee, Ohio, Indiana, Louisiana, Mississippi, Illinois, 
Alabama, Michigan, Arkansas, Texas, Iowa, Wisconsin, and Mis- 
souri, there is a prohibition against expelling a member a second 
time for the same offence; in those of Vermont and Michigan, 
there is a prohibition against expulsion for causes known to the 
constituents of a member antecedent to his election ; and in Geor- 
gia, the power to expel is restrained, as to cause, to disorderly 
behavior, and to conviction of any felonious or infamous offence. 
The constitutions of Illinois and Michigan require the reasons for 
the expulsion to be entered on the joiunal with the names of the 
members voting on the question. 



Aeticle II. Incidental Powers relating" to Persons not Members. 

690. In the American constitutions, this subject, though impor- 
tant as regards the independence of the legislature, is very diversely 
treated ; some contain no provision at aU, or a general one, relat- 
ing to it ; others enumerate the offences that may be committed 
against a legislative assembly by persons not members of it mth 
considerable detail ; while aU, which contain any thing on the 
subject, unite in prescribing imprisonment as the mode of punish- 
ment. 

691. The constitution of Maine gives authority to each branch 
of its legislature, during the session, to punish any person not 
a member by imprisonment not extending beyond the session. 
" Each house, during its session, may punish, by imprisonment, 
any person not a member, for disrespectful or disorderly behavior 
in its presence ; for obstructing any of its proceedings ; for threat- 
ening, assaulting, or abusing any of its members for any thing 
said, done, or doing, in either house ; provided, that no imprison- 
ment shaU extend beyond the period of the same session." This 
provision is apparently broad enough to include all the incidental 
po\vers of a legislative assembly, in regard to persons not members^ 
by the common parhamentary law. The mode and duration of 
punishment are also the same. 



Chap. IV.] incidental powers.. 271 

692. The constitution of New Hampshire confers authority upon 
each branch of the legislature of that State to punish by imprison- 
ment, not exceeding ten days for each offence, " every person who 
shall be guilty of disrespect to the house in its presence, by any 
disorderly and contemptuous behavior, or by threatening or Ul treat- 
ing any of its members ; or by obstructing its deliberations ; every 
person guilty of a breach of its privileges, in making arrests for 
debt, or by assaulting any member during his attendance at any 
session ; in assaulting or disturbing any one of its officers in the 
execution of any order or procedure of the house ; — in assaulting 
any "witness or other person ordered to attend by and during his 
attendance on the house, or in rescuing any person arrested by 
order of the house knowing them to be such. The senate, gov- 
ernor, and council shall have the same powers in like cases ; pro- 
vided that no imprisonment by either for any offence exceed ten 
days." This provision, like that above recited, seems broad enough 
to cover all offences, against a legislative assembly, by persons not 
members. The mode of punishment remains the same as by the 
common parliamentary law ; while its duration may be greater. 

693. The constitutions of Massachusetts, South Carolina, and 
Georgia, contain substantially the same provision on this subject. 
The former gives authority to each of its legislative branches to 
" punish, by imprisonment, every person (not a member) who shall 
be guilty of disrespect to the house, by any disorderly or con- 
temptuous behavior in its presence ; or who in the town where the 
general court is sitting, and during the time of its sitting, shall 
threaten harm to the body or estate of any of its members, for any 
thing said or done in the house ; or who shall assault any of them 
therefor ; or who shall assault or arrest any witness or other person, 
ordered to attend the house in his way in going or returning ; or 
who shall rescue any person arrested by the order of the house." 
By the constitution of this State, the term of imprisonment is not 
to exceed thirty days ; by those of South Carolina and Georgia, it 
is unlimited. These provisions seem broad enough to cover all 
offences against legislative bodies by persons not members. 

694. The constitution of Florida provides that " each house dur- 
ing the session may punish, by imprisonment, any person not a 
member, for disrespectful or disorderly behavior, in its presence, or 
for obstructing any of its proceedings." The same provision is 
found in the constitutions of Alabama, Mississippi, Louisiana, 
Tennessee, Indiana, lUinois, and Texas ; but in those of Tennessee 
and Indiana without the latter clause. In Florida and Tennessee, 



272 LEGISLATIVE ASSEMBLIES. [PaET IIL 

the imprisonment is general and must expire wdth the session, Tihile 
in Indiana and Illinois it cannot exceed tw^enty-fom- hom-s ; in 
Alabama, Mississippi, and Texas, forty-eight hours ; and in Louisi- 
ana, it is limited to ten days. The terms used in these constitu- 
tions are comprehensive enough to include aU legislative offences. 

695. The constitutions of the United States and those of the 
States of Vermont, Rhode Island, Connecticut, New York, New 
Jersey, Pennsylvania, Delaware, Maryland, Vu-ghiia, North Caro- 
lina, Kentncky, Ohio, Michigan, IVIissouri, Arkansas, Iowa, Wis- 
consin, and California, are silent with respect to the punishment of 
strangers for legislative offences ; but the constitution of Rhode 
Island expressly authorizes the punishment of contempt ; and those 
of Vermont, Connecticut, Pennsylvania, Delaware, Oliio, and Iowa, 
after conferring certain powers, therein enumerated, upon each 
branch, add the general clause already cited, that it shall also have 
all the other powers necessary to a branch of the legislature of a 
free State. Li the foregoing and aU the States mentioned m this 
paragraph, therefore, as weR those whose constitutions do not as 
those which do contain the general clause, above mentioned, it 
may be considered, that each of the legislative branches has juris- 
diction, according to the common parhamentary law, of aU offences 
committed against it by persons not members. 



lAW AND PRACTICE 



OP 



LEGISLATIVE ASSEMBLIES. 



PART FOUETH. 



OF THE POWERS AND FUNCTIONS OF A LEGISLATIVE 
ASSEMBLY AS SUCH. 

(273) 



LAW AND PRACTICE 



LEGISLATIVE ASSEMBLIES. 



PART FOURTH. 

OF THE POWERS AND FUNCTIONS OF A LEGISLATIVE 
ASSEMBLY AS SUCH. 



696. In the preceding parts of this work, having considered the 
election, constitution, and incidental powers of a legislative assem- 
bly; it will be proper, before entering upon the forms of pro- 
ceeding, by which it is governed and regulated, in the performance 
of its appropriate functions, to consider what those functions are ; 
or, in other words, what are the powers and duties, for which a 
legislative assembly is elected and constituted, and invested with 
the incidental powers already treated of. 

697. The legislative assemblies of the United States, having all 
been constructed upon the model of the two houses of the British 
parliament; the forms of proceeding which prevail in the latter 
have been adopted by them as their common parliamentary law; 
and upon that have been ingrafted the peculiar usages which dis- 
tinguish the various systems of parliamentary practice in this coun- 
try; precisely, as, upon the basis of the common law of England, 
the different legal systems of the several States have been estab- 
lished. 

(275) 



276 LEGISLATIVE ASSEMBLIES. [PaET IV. 

698. In order, therefore, to give a complete and intelligible vie^w 
of the law and practice of our own legislative assemblies, it will be 
necessary to exhibit somewhat fully and distinctly the law and 
practice of the British parliament. Having thus indicated the com- 
mon parliamentary law of all, — the basis upon which each pecu- 
liar system rests, — it will then be attempted, to point out wherein 
this system has been altered, added to, extended, or abrogated, in 
the systems which prevail in this country. 

699. The imperial parliament of the united kingdom of Great 
Britain and Ireland is composed of the crown and of what are 
called the three estates of the realm, namely, the lords spiritual, the 
lords temporal, and the commons. These several estates collec- 
tively constitute the parliament, in which the supreme or sovereign 
power of the British government resides. 

700. The crown, among other important prerogatives, is invested 
with certain powers and functions relative to the parliament, Vi^hich 
confer upon the king, or queen regnant, the chief place in that body. 
It belongs to the prerogative of the cro^^m to assemble, continue, 
and put an end to, parliaments, at its discretion ; but the exercise 
of this branch of the royal prerogative is so far regulated, fii'st, by 
law, that measures must be taken by the croT^m for the assembling 
of a new parhament within three years after every dissolution, and 
that no parliament can be continued in existence longer than seven 
years ; and, second, by the mode in which the government is now 
administered, parliament must at all events be assembled as often 
as once a year, and it cannot safely be dissolved (without a new 
one being called,) until the supplies necessary to carry on the gov- 
ernment for the current year have been provided. In addition to 
these prerogatives, the cro^m has a negative upon the choice of 
speaker by the commons, and upon biUs agreed to by both the other 
branches. 

701. The lords spiritual and temporal, though generally spoken 
of as two of the three estates of the realm, sit together and jointly 
constitute the house of lords, "^"hich, in point of rank and dignity, 
is the second branch of the parliament. The lords spuitual are 
composed of the archbishops and bishops of the established church 
of England, together with fom- representative bishops of the church 
of Ireland, who sit by rotation of sessions. The lords temporal 
consist, first, of the peers of England, second, of sixteen representa- 
tive peers for Scotland, chosen by the Scottish peers, for each par- 
liament, from their owm body, and, third, of t^\^enty-eight represent- 
ative peers of Ireland chosen for life from the peerage of Ireland. 



Chap. I] powers and functions. 277 

The lords spiritual are virtually appointed by the crown, as the 
head of the church. The lords temporal exercise their parliament- 
ary functions, by virtue of some title of honor conferred upon them 
by the crown, or of their descent or inheritance from some one upon 
whom or whose ancestors such a title of honor has been ante 
cedently conferred. 

702. The third estate, constituting the lowest branch of parlia- 
ment in point of rank and dignity (perhaps the highest in point of 
real power) consists of the commons, elected for each parliament 
by and for the several constituencies of Great Britain and Ireland. 
These constituencies in England, Wales, and Ireland, are, first, the 
several counties, sending members who are entitled knights of the 
shire ; second, the cities, whose members are denominated citizens ; 
third, the boroughs and universities, whose members are known 
as burgesses ; fourth, the cinque ports, who elect what are called 
barons ; and fifth, the towns and burghs of Scotland, who elect 
commissioners. These aU sit together, and constitute the house of 
commons. The collective name of this branch is the knights, citi 
zens, and burgesses. 



CHAPTER FIRST. 

OF THE GENERAL POWERS OF A LEGISLATIVE ASSEMBLY IN THE 
MAKING OF LAWS. 



Section I. Powers of the Assembly as an Aggregate Body. 

1. Legislative Powers of Parliament. 

703. With reference to the distribution which has been made 
in modern times of the functions of government, into the three 
departments of the legislative, executive, and judicial, the collective 
body of the parhament exercises the function of the legislative, and 
is accordingly denominated the legislature; the executive being 
vested in and exercised by the crown and its subordinate officers ; 
and the judicial inti-usted to the judges of the several courts. 

704. In the exercise of their ordinary functions, these three 

24 



278 LEGISLATIVE ASSEMBLIES. [PaRT IV 

departments are entirely independent and free from the control 
each of the others ; but, from the nature of the functions attributed 
to each, the legislative or lawmaking must necessarily be the 
superior and sovereign power ; for though it may not rightfully 
interfere with either of the others, in the discharge of their respec- 
tive duties, as a superior interferes in the proceedings and controls 
the acts of an inferior power ; yet, it may, in the exercise of its own 
appropriate functions, enlarge, restrain, alter, or regulate, at its dis- 
cretion, the pow^ers and functions of the other departments. 

705. The power of parliament has been variously described ; but, 
by no author, in more brief, comprehensive, and forcible terms, than 
by Sir Edward Coke, as quoted by the learned and elegant com- 
mentator on the laws of England : ^ — "It hath sovereign and 
uncontrollable authority in the making, confirming, enlarging, 
restraining, abrogating, repealing, reviving, and expounding of 
laws, concerning matters of aR possible determinations, ecclesiasti- 
cal or temporal, civil, military, maritime, or criminal : This being 
the place, where that absolute, despotic power, which must in aU 
governments reside somewhere, is intrusted by the constitution of 
these kingdoms. AH mischiefs and grievances, operations and 
remedies, that transcend the ordinary course of the laws, are within 
the reach of this extraordinary tribunal. It can regulate or new 
model the succession to the crown ; as was done in the reigns of 
Henry VIII. and WiUiam III. It can alter the established religion 
of the land ; as was done in a variety of instances, in the reigns of 
king Henry VIII. and his three children. It can change and create 
afresh even the constitution of the kingdom and of parliaments 
themselves ; as was done by the act of union, and the several stat- 
utes for triennial and septennial elections. It can, in short, do 
every thing that is not naturally impossible ; and, therefore, some 
have not scrupled to call its power, by a figure rather too bold, 
the omnipotence of parliament. True it is, that what the parlia- 
ment doth, no authority upon earth can undo." 

706. In describing the extent of the jurisdiction, as weU as the 
power of parliament, Mr. May remarks : — " The legislative author- 
ity of parliament extends over the united kingdom, and all its 
colonies and foreign possessions ; and there are no other limits to 
its power of making laws for the whole empire, than those which 
are incident to aU. sovereign authority — the willingness of the 
people to obey, or their power to resist, — unlike the legislatures of 

1 Blackstone's Comm. I. 160; Fourth Institute, 36. 



Chap. I.] general powers of legislation. 279 

many other countries, it is bound by no fundamental charter or con- 
stitution ; but has itself the sole constitutional right of establishing 
and altering the laws and government of the empire. In the ordi- 
nary exercise of government, parliament does not legislate directly for 
the colonies. For some, the queen in council legislates, M'hile others 
have legislatures of their own, which propound laws for their inter- 
nal government, subject to the approval of the queen in council ; but 
these may afterwards be repealed or amended by statutes of the im 
perial parliament ; for their legislatures and their laws are both sub 
ordinate to the supreme power of the mother country. For example, 
the constitution of Lower Canada was suspended in 1838 ; and a 
provisional government, with legislative functions and great exec- 
utive powers, was estabhshed by the British parliament. Slavery, 
also, was abolished by an act of parliament in 1833 throughout all 
the British possessions, whether governed by local legislatures or 
not; but certain measures for carrying into effect the intentions of 
parliament were left for subsequent enactment by the local bodies, 
or by the queen in council. At another time, the house of assem- 
bly of Jamaica, the most ancient of our colonial legislatures, had 
neglected to pass an effectual law for the regulation of prisons, 
which became necessary upon the emancipation of the negroes ; 
when parliament immediately interposed and passed a statute for 
that purpose. The assembly were indignant at the interference of 
the mother country, and neglected their functions, upon which an 
act was passed by the imperial parliament, that would have sus- 
pended the constitution of Jamaica unless within a given time they 
had resumed them. The vast territories of British India are sub- 
ject to the anomalous government of the East India Company; 
whose power, however, is founded upon statute, and who are con- 
trolled by ministers responsible to parUament." ^ 

707. In the exercise of this vast power, according to the funda- 
mental idea and constitution of parliament, the concurrence of the 
three distinct bodies of which it is composed, each acting by itself, 
and independent of the others, is necessary. No tw^o of them act- 
ing together, much less one alone, can make a law. This funda- 
mental idea of all modern legislative bodies, which are fairly enti- 
tled to the name, has been adopted into all the constitutions of the 
United States, fully as regards the two branches, but partially only 
as regards the executive. 

708. The reasons, on which this negative voice of each branch is 

1 May, 36, 37. 



280 LEGISLATIVE ASSEMBLIES. [PaRT IV 

founded, are stated wdth great force and clearness by a learned, able, 
and judicious writer, who had himself been a witness of the ad- 
vantages and disadvantages of which he speaks, and who had him- 
self been a member both of a parliamentary body exercising alone 
and by itself the functions of government, and of parliaments con- 
stituted in the ordinary manner. 

709. " Some affirm, that nothing doth more conduce to the lib- 
erty and security of a people than to have their supreme public 
councils, under such several negatives. All their interest, their 
lives, liberties, and estates, being under the power of those councils, 
it is more safe where they are to pass, from and after one resolution, 
to a yet fmi;her scrutiny and consideration, under another vote and 
negative, than where ah may be taken away, as it were, at one blow, 
by one single person's vote ; which, happening to make one vote 
more than those of the other judgment, this one man's voice carries 
with it the destruction of any man's life and fortune, and of the 
public interest. 

710. " But where there be several negatives, in the several 
estates, the party concerned gains new opportunity to inform the 
truth, and to defend himself; and the matter, whether public or 
private, is again and perhaps more thoroughly considered and 
weighed, than before possibly it could or should have been. If, for 
example, one house be misinformed, as too often is done; or be 
mistaken in their judgments, which is possible, because they are 
men ; the other house, or the king, the thh'd estate, may be better 
informed, or rectify that mistake ; and thereby do right to the per- 
son, who, otherwise, might have been, contrary to justice, ruined * 
or to the commonwealth, which otherwise might have suffered 
prejudice. 

711. " But T\dthout these several negatives, a person may be sur- 
prised, and his life and fortune lost ; or the whole kingdom suffer 
detriment, by the resolution of a supreme council, and that without 
redemption, or appeal ; or such impositions be laid upon the per- 
sons, estates, and consciences of men, (whereof some examples, and 
too many, have been felt,) which, in case of several negatives, had 
not been done ; and which have deserved second thoughts. And 
by these several negatives, is prevented the arbitrary po A'er of 
princes, — the domineering of gi-eat men, — and the insulting of in- 
ferior men being got into power, which of all other grievances is the 
most intolerable. 

712. " But where the several estates have several negatives, the 
greater care is had, by each of them, of all those whose conditions 



Chap. L] general powers of legislation. 281 

are nearest to them. And as every negative is an additional se- 
curity for the freedom and safety of the people, so the more delib- 
eration, debate, and disquisition is had, by several judgments and 
parts of supreme councils, the more ripe and perfect their laws and 
judgments wlU be, and the less subject to any just exception, and 
the more obeyed by those whose representatives consented to them. 
Excellent herein, is the frame and constitution of our parliament ; 
in which every one of the three estates hath his negative ; the king 
hath his negative ; the lords have theirs ; and the commons theirs. 
But the bishops had no negative ; nor the knights no negative ; but 
all the lords had one ; and all the commons, another ; and the king, 
the third." i 

713. The three branches exercise their negative upon each other 
in a different manner ; the crown has a single negative upon bills 
that have been agreed upon by the other branches, but is not 
authorized to originate any legislative act, (with a single exception,) 
or to propose amendments or alterations to such as come from the 
two houses ; whereas each of the two houses (with the exception 
of money bills on the part of the lords) is authorized to originate 
and mature measures by itself, and, when its concurrence is asked 
to measures originated and matured by others, to propose amend- 
ments. 

714. Besides the functions of the three branches, which are 
purely and exclusively legislative, each of them is invested with 
others ; the crown is the principal executive and administrative 
power ; the house of lords is a judicial court of error and appeals in 
the last resort, having also original and exclusive jurisdiction of im- 
peachments and of certain offences committed by peers ; and the 
house of commons is usually called the grand inquest of the nation, 
in determining upon and preferring impeachments to be tried at 
the bar of the lords. 



2. Legislative Powers as restricted by Constitutional Provisions in 

the United States. 

715. The legislative power, which, in the parliament of Great 
Britain, is unlimited and absolute, restrained only by the nature of 
the subject-matter, is in this country variously regulated, modified, 
and limited by constitutional provisions ; in virtue of which the 
"udicial tribunals are authorized to adjudge all acts of legislation, 

1 Whitelocke, IT. 339, 340, 341. 

24* 



282 LEGISLATIVE ASSEMBLIES. [PaRT IV. 

which transcend the powers of the legislative bodies from which 
they emanate, to be void and inoperative as being unconstitu- 
tional. 

716. The several subjects of these provisions, as they have been 
developed and applied in the decisions of the highest judicial tri- 
bunals, constitute a branch of jurisprudence peculiar to this coun- 
try-, denominated constitutional, a topic altogether too copious to 
be embraced in this work, and only necessary, for the present pur- 
pose, to be briefly alluded to, in order to point out, or to lay down, 
a rule for determining, if possible, the precise limits and boundaries 
of the legislative povi^er, or in other T\^ords the line ^\'hich separates 
the powers conferred from those v>"ithheld. There are three aspects, 
in which the subject presents itself, which it may be useful to con- 
sider ; — first, the powers of State legislatures under the constitu- 
tions of the several States ; second, the powers of congress under 
the constitution of the United States ; and thfrd, the powers of the 
State legislatures as affected by the constitution of the United 
States. 

717. I, In the constitutions of the several States, the legislative 
department is established, and power conferred upon it, in general 
terms, as the supreme law making authority, limited only by the 
restraints thereon expressly declared in the instrument itself, and by 
the implied prohibition to change any part of the form of govern- 
ment thereby established. The power of a State legislature, there- 
fore, is general, and unlimited, and extends to aU subjects of legis- 
lation, except in those particulars wherein it is expressly restrained 
as above stated. Consequently, when a question arises, whether a 
given subject is \^dthin the constitutional power of a State legisla- 
ture, the inquiry should be, not whether it is conferred, specifically, 
but, whether it is withheld, in terms, or by necessary implication. 
If it cannot be said, affirmatively, that the power in question is 
\^dthheld, then it exists under the general grant. If the inquiry 
leads merely to a doubt of the power, the doubt is in favor of its 
being granted. 

718. II. In the constitution of the United States, which was 
established by the citizens of the several States, in which the State 
legislatures had already been invested v^dth the sovereign power of 
legislation, the proceeding is dii-ectly the reverse of that above 
stated. Instead of conferring legislative power upon congress, in 
general terms, and then restricting the grant by specific pro^dsions, 
which mode, besides being inconsistent wdth the purposes of the 
federal government, would have superseded the legislative powers 



Chap. L] general powers of legislation. 283 

of the States, the grant of power is specific ; so that congress has 
no powers except those which are expressly, or by necessary impli- 
cation, conferred upon it. Consequently, when a question arises, 
whether a given subject is within the constitutional power of con- 
gress, the inquiry should be, whether that power is conferred, not 
whether it is withheld. If it cannot be said affirmatively, that the 
power in question is conferred, then it does not exist ; if the inquiry 
leads merely to a doubt, the doubt is against the grant. 

719. III. In regard to the thu-d inquiry above suggested, which 
relates to the powers of the State legislatures, as affected by the 
constitution of the United States, the provisions of the latter oper- 
ate upon the former in two ways, first, by a direct prohibition to 
legislate upon certain subjects at aU, and second, by means of 
powers which supersede the exercise of the same, or similar powers 
on the part of the State legislatures; and, in reference to both, the 
rules above stated are to be applied, the first to determine whether 
a given power would exist in a State legislature, independent of 
the constitution of the United States, and if so, second, to deter- 
mine whether the power in question is taken away by the latter. 



Section II. Powers of the Members individually. 

720. There are two distinct fundamental forms, in which a legis- 
lative assembly may be supposed to exist, namely, as an assem- 
blage of the deputies of the several constituencies, by which they 
are elected, to treat of and determine certain matters wherein they 
have a common interest, and thereupon to form a compact with one 
another concerning the same, binding upon those whom they repre- 
sent ; or as a meeting of the representatives, not of the particular 
constituencies, but of the whole people in their legislative capacity, 
and authorized to act for and to bind them, within the scope of the 
powers which they have seen fit to confer upon the supreme legis- 
lative department. The first idea probably lies at the foundation 
of the British house of commons ; but for a very long period, that 
body has ceased to be regarded merely as a collection of deputies,^ 
and has been looked upon as a branch of the sovereign legislative 
power ; and such also is the character which belongs to legislative 
bodies in this country. 

721. " The citizens and burgesses," says Whitelocke,^ " are to 
have the same power with the knights ; and the knights with them, 

1 Hans. (3) II. 1090. s Whitelocke, II. 329, 330. 



284 LEGISLATIVE ASSEMBLIES. [P.\KT IV 

when they are met in parliament. They are not citizens and bur- 
gesses only for the places for which they serve ; but they are then 
members of parliament, ser^dng for every county, city, and borough, 
in England, for the whole kingdom ; and are obliged by the duty 
of parliament men, to take equal care of the good and safety of 
every other county, city, and borough of England, as they are to 
take of those which particularly chose them. So that now they 
are become ' knights, citizens, and burgesses of England.' And a 
defect of power in them, or an improvident choice of them, may 
hinder the business of the whole kingdom, wherev;dth every one of 
them is intrusted." 

722. It foUows, in the first place, from this principle, that every 
member represents and binds both himself and his fellows ; or, as 
the same thing is more fully stated by the author just quoted : ^ — 
" It is the wisdom of om- law, that acts of parhament are equally 
binding to the makers of them, as to the rest of the people ; and, 
though the knights of the shire do represent aU the commonalty of 
the county, and bind them aU by their public resolutions ; yet are 
they not exempt themselves from the force of those laws which 
are made by them ; but are equally engaged to submit to them, 
and obey them, as those whom they represent ought to do. If they 
[the commons] grant a tax upon the people, they themselves must 
pay their share of it ; if they make a severe law, they themselves, 
as much as others, are liable to the penalties thereof. They can- 
not prejudice the people's rights and liberties, but they prejudice 
their ow^n. They are empowered for themselves, as well as for the 
commonalty of the county ; and shall taste themselves, as well as 
others, of the good or e\il fruits of their consultations ; and there- 
fore will be the more provident and wary in their determinations." 

723. Secondly, the power conferred by the election is the entire 
power possessed by the electors, and, when once conferred, is 
irrevocable. Wliitelocke, in the follomng paragraph, while he 
waives the discussion of these propositions, considers them as estab- 
lished.^ " The electors in each county, city, and borough, are those 
who give the power, and parliamentary authority to thefr deputies ; 
and they are by this ^\Tit to give full, and sufficient power, for the 
despatch of the great afFaus to be treated on. There must be no 
defect ; that is, then- knights, citizens, and burgesses must want no 
power. I shall not hereupon discourse of that power in the elec- 
tors, to give more or less authority and power to their deputies, as 

1 "WJiitelocke, U. 87. 2 Whitelocke, 11. 306, 307. 



Chap. L] general powers of legislation. 285 

the electors please ; nor, of that point, whether the authority being 
given by them, it be not in their power to recall the same again 
when they think fit; in case the actings of their deputies be judged 
by them, to be contrary to their good. Such questions as these, 
and of the power in the people, are never 'stnred without some 
damage and trouble likely to arise therefrom. It is nowhere to 
be found, that these questions have been determined; or, such 
powers executed, by the electors, only, by their indenture, to give 
full authority to their deputies ; who have been also so careful, not 
to give distaste to their electors, that they have answered, upon 
new affairs to them propounded, that ' they were ready to aid the 
king's estate ; only, in a new devise, they durst not agree without 
further conference with then* county, from whom they received 
their authority ; and desired to have their pleasure in the particular 
execution of it.' " 

724. Thirdly, the giving of pledges or promises by members, 
before their election, in regard to their conduct afterwards, is incon- 
sistent with their public duties : — " The members of parliament 
are not, beforehand, to make any compacts, or undertakings, what 
they will do, or not do. But what shall be propounded among 
them when they are met together, — that is to be considered by 
them, — that they are to deliberate upon. And after a free debate 
in full parliament ; as their judgment shall be swayed by reason, 
and as God shall put it into their hearts, so are they to ordain ; 
and therefore it is said, ' shaU happen to be ordained.' The mem- 
bers come not to parhament prepared, or bespoken beforehand ; 
but, as free counsellors, to give theii* votes, as their reason shall be 
satisfied ; as they judge will most conduce to public good. And 
the word ' ordain ' is proper for all their determinations ; either of 
advice, or which are judicial, or legislative. We find the word 
* ordinances ' often used in our books of law, and in the records of 
parliament, in several senses." ^ 

725. Lastly, it foUow^s from the nature of a legislative assem- 
bly, as above stated, that each individual member has power to 
participate as such in every thing which the assembly itself may 
do as an aggregate body : — "It is the great privilege of the parlia- 
ment of England, that every one of the members thereof hath the 
liberty of proposing, in that assembly, what he judgeth may be fit 
for the public good. He may ' do as weU as consent.' He may 
complain of any pubKc or private grievance ; and propound reme- 

1 Whitelocke, II. 294. 



286 LEGISLATIVE ASSEMBLIES. [PaRT IV 

dies. He may present petitions for others ; or offer bills foi 
repealing or altering old laws, or for making new ones." ^ 

726. Such is the general nature of the powers and functions of 
the individual members of a legislative assembly as admitted both 
in England and in this country. But a right has been asserted 
and contended for in England, as well as here, on the part of the 
immediate constituents of members, to give directions or instruc- 
tions to their respresentatives, how they shall proceed and vote in 
reference to particular topics or questions. The right of instruction, 
as it is called, appears to have been generally admitted in England, 
and obedience rendered accordingly, by individual members to 
whom instructions have been addressed ; ^ but obedience has been 
sometimes refused ; and the right itself denied, by WTiters on politi- 
cal and parliamentary law, as absolutely binding upon the acts and 
votes of members. The doctrine on this subject, as generally if not 
universally admitted in England, is thus stated by IVIr. Speaker 
Onslo"w : — " Every member, as soon as he is chosen, becomes a 
representative of the whole body of the commons, without any dis- 
tinction of the place from whence he is sent to parliament. Instruc- 
tions, therefore, from particular constituents to their own members, 
are or can be only of information, advice, and recommendation, 
(which they have an undoubted right to offer, if done decently ; 
and which ought to be respectfully received and weU considered,) 
but are not absolutely binding upon votes, and actings, and con- 
science, in parliament." ^ 

727. Li this country, the right of instruction has been contended 
for, on the one hand, independent of constitutional provision, and, 
on the other, has been denied to exist, even where it is expressly 
conferred, in any other sense, than as declaring the right of con- 
stituents to make known their views and wishes to their represent- 
atives. Both propositions are equally untenable. A right of instruc- 
tion, to wliich the duty of obedience is not correlative, is entirely 
inconsistent ^dth the constitution and fmictions of an independent, 
sovereign legislative power ; and it is equally impossible to suppose 
that the right of instruction is restricted, in those of the constitutions 
in which it is declared, to signify a mere expression of opinion, on 
the part of constituents, with which representatives are at liberty to 

1 Whitelocke, II. 181. s Hatsell, 11. 76, n. See also Blackstone's 

2 Commons Debates, XIII. 15, 115; Same, Comm. I. 159; Fourth Inst. 14; Sydney on 
XIV. 1; Pari. Reg. HI. 216, 228, 39&; Same, Government, § 44, p. 451. 

XVU. 254, 255, 256; Same, XXL 282,283; 
Same, X. (2) 159; Same, XIL (2) 331. 



Chap. L] general powers of legislation. , 287 

comply or not at their pleasure. It may be stated, therefore, in 
regard to the right of instruction in this country, that it exists onlj 
in those States in which it is expressly reserved by constitutional 
provision ; and that where it so exists, it is an absolute right, to be 
implicitly obeyed, when exercised, so far as it is authoritatively 
expressed.^ 

728. Where the right of instruction exists by constitutional pro- 
vision,^ or is admitted as obligatory, it is important to ascertain in 
what manner it may be exercised, for which a few remarks will be 
sufficient. In the first place, if the constituency is a municipal cor- 
poration, competent to express itself by a corporate act, that is 
clearly the only authentic mode of giving binding instructions to its 
representatives ; so if the constituency is a sovereign State, as is 
the case with reference to the senate of the United States, it can 
only give binding instructions by means of a legislative act, passed 
in the ordinary form. K the constituency is not a municipal cor- 
poration, as is the case with the greater number of districts for the 
election of representatives in the congress of the United States, 
there is no other mode of instructing their representatives than by 
the signatures of individuals, or by their attendance at a pubfic 
meeting called for the purpose. In a case of this kind, the mem- 
ber, to whom the instructions are addressed, must determine for 
himself, whether they express the opinions of a majority of the con- 
stituency, (for no smaller number certainly can be competent to 
instruct,) and, therefore, whether they are to be implicitly obeyed, 
or only respectfully considered. Lastly, if the instructions are sufii- 
ciently expressed, and the obligation of obedience exists or is recog- 
nized, the member addressed has no alternative but to obey, and 
cannot relieve himself from his obfigation by resigning his seat; a 
proceeding which, in most cases, would as effectually destroy the 
right of instruction as direct disobedience. 

729. It is the right of every member of a legislative assembly, 
and essential to the proper transaction of the business, to have the 
orders of the assembly enforced without delay or debate when 
infringed. The orders may be waived or suspended in virtue of 
a rule or vote to that effect, but whilst they remain in force, every 



1 See, on the right of instruction, Lieber's Indiana, Illinois, Michigan, Arkansas, and 
Political Ethics, Part II. BookVIL; American California. Whether and to what extent, it 
Kevievv, (1812,) IV. 137. is admitted as obligatory, in the other States, 

2 The right of instruction is recognized in in the constitutions of which it is not in- 
the constitutions of Maine, New Hampshire, serted, is not known to the writer. 
Vermont, Massachusetts, Tennessee, Ohio, 



288 LEGISLATIVE ASSEilELIES. [PaET IV 

member may require their observ^ance. A frequent example of the 
practical assertion of this right occurs in the British parliament 
when the house is cleared of strangers. It is a standing rule of 
both houses, that strangers shall not be present in the house when 
it is sitting, and that aU persons offending against this order shall 
be taken into custody. Notviuthstandiug this rule, strangers are 
constantly present, and accommodations are even provided for 
them. But this infraction of the rule takes place merely by suffer- 
ance ; it is not even by the indulgence of the house ; strangers are 
not supposed to be present, until their presence is noticed by some 
member ; but when this is the case, and the infraction of the rule 
becomes officially apparent, it must be enforced, T^dthout delay or 
debate, upon the demand of any member. So, if a stranger should 
happen to be counted with one side, on a di^dsion, if any member 
requfres it, there must be a new division. So, when a motion has 
been made, seconded, and proposed by the speaker as a question, it 
must be decided by the house, according to the rule of order, and 
the mover is not at liberty to vdthdraw it, so long as any member 
insists upon its being put. It may be said, therefore, that when a 
thing can only be done by general consent, every individual mem- 
ber may prevent it from being done, by interposing an objec- 
tion. 

730. It may be inferred, fr'om what has been previously stated, 
not only that the members of a legislative assembly are perfectly 
equal among themselves, but that each had a right to participate 
in all the proceedmgs of the assembly to which he belongs. This 
principle admits in this comitry of three exceptions, first, in the case 
of those presiding officers, who preside in virtue of some other 
office to which they are elected or appointed, and who only par- 
ticipate in the proceedings of the assemblies over which thev pre- 
side, by presiding and giving a casting vote therein ; secondly, in 
the case of members under arrest or otherwise suspended fr-om their 
functions, and, thirdly, in the case of those members of the house 
of representatives in congress, who, under the name of delegates, are 
elected by and represent territories which are not yet organized aa 
States.i 

1 These exceptions have been already sufficiently considered ; see ante, ^ 2S0, 2S1, 2S2. 



Chap. II.] relation or the several branches. 289 



CHAPTER SECOND. 

OF THE RELATION OF THE DIFFERENT BRANCHES OF THE LEGIS- 
LATIVE DEPARTMENT TO ONE ANOTHER. 

731. According to the constitution of parliament, as above de- 
lineated, and of those of other similarly constituted legislative 
bodies, two principles evidently lie at the foundation of all its pro- 
ceedings, namely, that the concui-rence of each of the branches of 
which it is composed is necessary to the doing of every legislative 
act ; and that, in coming to such agreement or concurrence each of 
the several branches is entitled to proceed with entire freedom, and 
in perfect independence of both the others. From these two princi- 
ples, it follows, first, that each of the three branches should do every 
thing in its power to promote, and should refrain from every thing 
that might prevent a good correspondence and harmony between 
the several branches ; second, that each should do all in its power 
to facilitate the proceeding of the others, in a parliamentary way ; 
and, third, that each should abstain from all such interference with 
the proceedings of the others, as may tend to injure their freedom 
and independence, by exerting any undue influence upon them in 
respect to any pending measure. These principles are equally 
applicable to the legislative assembhes of this country. The topics 
thus suggested will form the subject of the three following sections. 



Section I. Op the Good Correspondence and Harmony which 

OUGHT to prevail BETWEEN THE DIFFERENT BRANCHES. 

732. In order to the efficient action of parliament, as a collective 
body, to which the concurrence of all its members is necessary, 
nothing is or can be more essential than the existence of harmony 
and a good correspondence among the several branches. In order 
to insure these desirable objects, it is necessary that each branch 
should on all occasions pursue the accustomed methods of proceed- 
ing, and observe the usual ceremonies in whatever communications 
take place between the several branches; that they should respec- 
tively abstain from every proceeding inconsistent with the legisla- 

25 



290 LEGISLATIVE ASSEMBLIES. [PaRT IV. 

tive jDrerogatives of the cro^^m, or the privileges of either house ; 
that the members of the tr^^o houses should respectively abstain 
from all offensive and unparliamentary remarks, either in debate or 
in any other parliamentary proceedhig, of or tovi^ards the other or 
its members, or tovards the executive ; and that the tv.'0 houses 
should extend to each other and their members respectively aU ihe 
accustomed courtesies and ci^ohties, v»'hich are due from one equal 
to another. 

733. K either of the t^vo branches has any ground to complain 
of the proceedings of the other, for any of the causes above men- 
tioned, the course of proceeding is to make a representation of the 
matter of the complaint by means of a conference, and to leave to 
the other house to do what it thinks proper in "the premises; as 
neither house has any povi'er over the other or its members, except 
that which results from the justice of its demands, and the proper 
temper and spuit ^T.th which they are made. It may be added, as 
essential to a good correspondence betvi^een the several branches, 
that, when a member, officer, or servant of either, has been guilty 
of any offence either against the other house, or against its mem- 
bers, '^^hich would be punishable by the latter if committed by one 
of its O'^m. members, officers, or servants, it is the duty of the house 
to which such offender belongs, upon being apprised of the fact, to 
take proper measures to inquire into and punish the offence in a 
proper manner. 



Sectiox II. Of the Duty of each Braj^ch to facilitate the 
Pkogeedixgs of the Othees. 

734. In the course of the proceedings in one house, it frequently 
becomes necessary to have the attendance of the members or officers 
of the other as witnesses, or to obtain a knowledge of its proceed- 
ings, or to have the evidence of some one in its custody. In aU 
such cases, the former, as it cannot command, or exercise any 
power, makes its request to the latter ; and, accordingly, when- 
ever any such request is made in a parliamentary manner, it is the 
duty of the house so applied to, to grant the request. 

735. The attendance of the members or officers or persons in the 
custody of one house, in the other, as witnesses, will be treated of 
in connection with that of witnesses generally. In regard to the 
communication of documentary e^ddence, upon wliich bills or other 
measures, agreed to in one house and sent to the other for concur- 



Chap. II.] relatiujn uf the several branches. 291 

rence, is founded, it is not the custom ^ to transmit it with the bill, 
but if the house to which the bill is sent desire to have it, that 
house sends to the other house for it, which transmits it accord- 
ingly. This proceeding may take place either by message, or by 
conference ; which latter is the more proper mode. In this country, 
it is believed to be the practice, generally, to transmit the evidence, 
in the first instance. 

736. If either house of parliament desires to know what takes 
place in the other, with reference to any particular measure, the 
information can be obtained (a committee being appointed for the 
purpose) from the votes and proceedings, which are now printed 
and distributed from day to day in both houses.^ Formerly, if the 
house of commons had occasion and desired to know the proceed- 
ings of the house of lords, in which the votes were not printed at 
all, and the journals not until some time after the termination of the 
session, the course was to appoint a committee to search the lord's 
journals, with reference to the matter in question, and to report 
the proceedings to the house.'^ The journals of the lords being 
a record to which every one may resort for information, the com- 
mittee of the commons had a right to make such inspection, and it 
was of course the duty of the clerk or officer having the custody of 
the journals, or of the minutes from which the journals were to be 
made up, to afford the committee the needful facilities to accom- 
plish their mission. In modern times, the proceedings of the two 
houses of the British parliament, as well as those of our legislative 
assemblies, are practically so far public, that what is done in one 
branch, with reference to any parliamentary matter, is commonly 
sufficiently known in the other without searching the journals of 
the former. 

Section III. Of the Interference of any of the Branches 
IN the Proceedings of the Others. 

737. As it is highly expedient, for the due preservation of the privi- 
leges of the separate branches of the legislature, that neither should 
encroach upon the other ; it is equally important that neither 
should interfere in any matter depending in the other, so as to pre- 
clude, or even influence, that freedom of debate or of action, which 
is essential to a free council ; and, therefore, neither the king, nor 
lords, nor commons, are to take notice of any bills, or other matters 

1 Sometimes it appears to be sent; Pari. 2 jij^y^ 195^ 200. 
Beg. (2.) XVIII. 27, 30, 33. s See Hatsell, HI. 32, 33. 



292 LEGISLATIVE ASSEilBLIES. [PaRT IV. 

depending, or of votes that have been given, or of speeches that 
have been made, by the members of either of the other branches, 
until such proceedings have been communicated to them in the 
usual and parliamentary manner.^ 

738. For the same reason, it is irregular and disorderly for a 
member to make use of the name of the sovereign in debate, for 
the purpose of influencing the decision of the house. In this 
country, it is equally inregular and disorderly to allude to the execu- 
tive department, for the same purpose, even in those States where 
the executive has no veto power. 

739. So it is unparhamentary, in one house, to inform the other, 
to which a bill or other measure is sent for concurrence, by what 
majority it passed in that branch; though wherfe a bill passes by 
an unanimous vote, in v^^hich case the fact appears in the indorse- 
ment by the clerk, it is not considered irregular thus to notify the 
house to "^"hich it is sent of the fact.^ So it is equally irregular 
in the house, from "which a bill or other measure is sent for con- 
currence, to call on the house to which it is sent to be informed 
of the reasons, "^^hy that house has proceeded in the particular 
manner, in which it has proceeded, or why it has not proceeded at 
aU. 

740. But, it is no improper interference for one house to remind 
the other of bills which have been sent to it for concurrence ; or for 
one house to request the other to remain sitting, in order that the 
first may have an opportunity to send a message to it ; both which 
proceedings are of Sequent occurrence. 



CHAPTEE THIRD. 

OF THE EYIDEXCE AXD IXFOEMATION ON WHICH PAELLAJVEENTAKY 
PROCEEDDsGS AEE EOUOT)ED. 

741. This chapter will treat, in the first place, of the nature and 
applicability of the evidence, upon which a parliamentary proceed- 
ing is grounded ; and, secondly, of some particular kinds of evidence 
which are much in use in legislative assembfies. The latter consist 

1 Hatsell, XL 356. 2 Pari. Eeg. XV. 238. 



Chap. TTI.] evidence and information. 293 

mainly of the evidence of common fame, and of the statements of 
members. 



Section I. Of the Nature op the Evidence upon which a 
Parliamentary Proceeding may be founded. 

742. The proceedings of a legislative assembly frequently render 
it necessary to institute inquiries into matters-of-fact, and, of course, 
to receive and judge of the various kinds of evidence upon which 
human conduct is predicated, and which may be submitted to its 
consideration. In the every-day affairs of life, and in reference to 
matters in which their own interests are alone involved, men act 
upon every land of evidence, which has any even the slightest 
tendency to induce belief. But in regard to affairs in which par- 
ties are adversely interested, and in which there are conflicting 
rights and claims to be adjusted, ihe law has wisely provided, that 
only such evidence shall be received, and under such circumstances 
as shall afford reasonable security both against designed falsifica- 
tion and unintentional mistake. Between the highest kind of this 
evidence, and the lowest of that before alluded to, there is of course 
an infinite diversity of degrees of proof, ranging from the one 
extreme to the other; all of which are receivable and entitled to 
consideration in parliamentary proceedings, according to the nature 
of the subject-matter, to which the evidence is to be applied.^ 



Section II. How the different kinds op Evidence are 

applicable. 

743. The rules of evidence by which courts of justice are gov- 
erned, and by which their proceedings are regulated, in the inves- 
tigation of the cases which come before them, make a part of the 
civil right of the citizens, as much as the rules regulating the acqui- 
sition, the enjoyment, or the transmission of property, or which 
govern any other matter of civil right ; and, when a question of the 
same nature is pending in the legislatmre, involving private interests 
only, no good reason can be assigned why the rules of evidence 
should not be the same. It would seem reasonable therefore to 
regard it as a rule of parliamentary practice, that when the private 
interests of individuals are the subject of investigation, or, in other 

1 See alf50 Cong. Globe, XVIII. 653. 

25* 



294 LEGISLATIVE ASSEMBLIES. [PaET IV 

words, where the investigation is a judicial one, and so far as it is 
of that character, the same or analogous rules of evidence should 
be applied, as would be observed in the investigation of similar 
interests in any of the courts of law or equity ; and this appears to 
be the rule, which has prevailed in modern times. On the occasion 
of what is called the Queen's trial, which took place on a bill of 
pains and penalties pending in the house of lords,^ the rules of 
evidence were strictly observed.^ 

744. Where the subject under investigation is not of a judicial 
nature, no other rule can be given as to the kind or degree of evi- 
dence to be required, than that it should be such as to satisfy the 
mind and conscience of individual members, and afford them suffi- 
cient ground for belief and action, in reference to their own private 
affairs. 



Section III. Or the Evidence oe Common Fame. 

745. In the earlier periods of parliamentary history, when it was 
more common than it; has since been to institute inquiries into the 
conduct of high officers of state, the evidence of common fame or 
report was admitted, as sufficient ground for an inquiry, though 
not for a condemnation ; provided it " was a general report or voice 
of neighborhood," and not a mere "rumor which is a particular 
assertion from an uncertain author ; " and provided also that it was 
not a " reputation or fame upon a generafity " but " upon a particu- 
lar specification." 2 The evidence of common fame, thus defined 
and restricted, seems proper to be received for the purpose merely 
of fomiding an iiiquuy upon it ; and such seems to be the effect 
which has been attributed to it iu more recent times. 



Section IV. Of the Statements of Members. 

746. The other source of evidence, to which allusion w^as made, 
is the statements of members, not as witnesses, but as members, 
and upon their responsibifity as such. These statements are always 
received as worthy of credit, and are acted upon accordingly when 
uncontradicted.'* What a member states of his own knowledge 
is of course entitled to at least as much credit as if it came from 



1 Broderip & Bingham, H. 287. ^ Whitelocke, L 471. 

- Hans. (1) VII. 518, 519. * Hans. (1) XII. 655. 



Chap. Ill] evidence and information. 295 

the mouth of a witness, but the statements of members are not con- 
fined to matters and things within their own knowledge ; whatever 
they have derived from other sources they are equally at liberty to 
state ; and it is for the house to judge, in each particular case, what 
credit is due to the statement; it is not always to be received 
merely because it comes from a member ; neither is it to be rejected 
because it is the opinion or judgment of a member formed upon 
exterior evidence, and not a matter within his own personal knowl- 
edge. The statements of members are constantly received and 
acted upon in a great variety of cases. In making statements, 
which are to be acted upon, members are responsible to the house, 
and liable to censure and punishment for any culpable misrepre- 
sentation. 



Section V. Of other Sources of Evidence. 

747. In addition to w^hat may properly be called evidence, namely, 
that which is obtained by means of an inquiry instituted by the 
house, or brought forward by a party, all the information of every 
description, which, in any way, comes into the possession of the 
house, may be regarded as evidence. Messages from the executive, 
either at the commencement or in the course of the session, — docu- 
ments from the same source, — returns from public officers or com- 
missioners, either in pursuance of law, or of the orders of the house, 
— constitute evidence upon which legislative proceedings may be 
founded. In regard to the credit Avhich may be due to evidence of 
this sort, no general rule can be given. The house must judge in 
each individual case. 

748. It frequently happens, that documents received by one 
house from extraneous sources, are communicated to the other, 
either at its request, or voluntarily on the part of the former. Such 
papers are, of course, to be judged of by the house to which they 
are sent, according to their nature, and to the source from which 
they emanate ; they derive no additional weight from the medium 
through which they come. 

749. The minutes of the evidence taken by one house, upon 
which a bill or other measure sent to the other for concurrence is 
founded, are not unfrequently sent to the latter, either with the bill 
or measure in question, or at the request of that house. In the 
latter case, the minutes so sent become evidence in the house to 
which they are sent; in the latter, they are looked upon not as 



296 LEGISLATIVE ASSEMBLIES. [PaRT IV. 

evidence which may be read and considered as such, but only in 
the light of an index or memorandum of the names of witnesses, 
and of the statements made by them, to assist the house in its 
examination.^ 

750. To the head of information, introduced for the purpose of 
aiding the house in its deliberations, belong the inquiries, which 
are allowed to be put to and answered by ministers, in reference to 
matters of public interest. By the practice of both houses, mem- 
bers are allowed to put questions to ministers of the crown, con- 
cerning any measure pending in parliament, or other public event : 
and to particular members w^ho have charge of a bill, or who have 
given notices of motion. Such questions should be limited, as far 
as possible, to matters immediately connected Vkdth the business of 
parliament, and should be put in a manner which does not involve 
argument or inference. The answer should, in the same manner, 
be confined to the points contauied in the question, with such 
explanations only, as will render the answer intelligible.^ This 
topic will be explained more at length hereafter. 



CHAPTER FOURTH. 

OF THE FORMS IN WHICH THE POWER OE LEGISLATION IS 
EXERCISED BY A LEGISLATIVE ASSEMBLY. 

751. It is only those functions of the three branches of parlia- 
ment, which are exercised in the way of legislation, — that is, 
which terminate in the form of acts of parliament passed by the 
concurrent agreement of the tu'o houses, and assented tp Dy the 
crown, — that there is any present occasion to notice. The strictly 
iudicial functions of each house, exercised independently and 
exclusively of the other, so far as they are branches of a legislative 
body, have abeady been treated of, under the head of incidental 
powers. The judicial functions of the house of lords, as a court of 
error and appeal, do not fall -^dthin the purposes of this work. 
The proceeding by impeachment, vs^hich belongs to the two 
branches as the sovereign legislative power, though not conducted 

1 Pari. Eeg. (2) XYHI. 27, 30. 33. « May, 195. 



Ch^P. IV.] FORMS OP LEGISLATION. 297 

according to the $orms of legislation, will be treated of in another 
place. At present, then, the inquiry relates only to those functions 
which are strictly legislative in point of form. 

752. In this country a form of legislative act is much in use, 
denominated a joint resolution, or more commonly, perhaps, a 
resolve ; which, in fact, is only another name for biU or act.^ A 
resolve, though the line which separates a legislative act of the kind 
from a bill properly so called, cannot be accurately discriminated, 
is the form generally adopted in this country, when administrative, 
local, or temporary laws are to be passed. In what follows, in this 
chapter, resolves or joint resolutions as such do not require to be 
separately noticed. 



Section I. Classification and Description of the different 

KINDS OF Bills. 

753. There are two modes of classifying acts of parHament, or 
bills, as they are technically called, before they have received the 
royal assent ; the one founded in the extent, the other in the nature, 
of their operation. According to the first division, bills are either 
public or private ; according to the second, they may be termed 
legislative or judicial. Besides these, there are other modes, in 
which bills are designated, which are not at present material to be 
explained. The first-mentioned distinctions, as they have an 
important bearing upon the forms of proceeding, require to be 
briefly considered. 

754. A public bill is one which operates upon some subject or 
measure of public policy in which the whole community is inter- 
ested.^ A private bill is one which is for the particular interest or 
benefit of some person or persons, whether an individual or a 
number of individuals, a public company or corporation, a parish, 
city, county, or other locality having not a legal but a popular 
name only.'^ In strictness, a private bill is one which, as regards 
the interest of the parties, is exceptional to the general law, so far 
as the particular subject of it is concerned ; or which makes, or 
allows the parties to make, other and different arrangements, in 
reference to some particular matter, than would be authorized or 
allowed by the general law. A bill, wliich is purely legislative in 
its character, is one which provides prospectively for the regulation 

1 J. of H. 20th Cong. 1st Sess. 816 ; J. of 2 May, 486. 
H. 32d Cong. 1st Sess. 679. 8 May, 486. 



298 LEGISLATIVE ASSEMBLIES. [PaRT IV. 

and conduct of some matter of public or private concern, of general 
or local application. A bill Tpwcelj judicial in its character is retro- 
spective in its operation; having for its object the settling and 
adjusting of some matter of conflicting right or interest between 
individuals, or between the public and an individual, or the trying 
of a party for some public offence.^ 

755. These different kinds of bills, though susceptible of being 
accurately discriminated one from another, very seldom occur in 
their pm-e and distinct character. A public bill is very often pm-ely 
of that character, or combined at the same time with the legisla- 
tive; but one may nevertheless partake (and this occasionally 
happens) both of the character of the private and of the judicial. 
A private bill is seldom exclusively so ; but is almost always in 
part judicial and to a certain extent pubUc, that is, involving 
interests which are of general concern. A judicial bill always 
necessarily affects the interests of the parties concerned, and is so 
far private ; while, at the same time, the interests of the public are 
concerned, in a greater or less degree, and, as a precedent for the 
future, it may be considered as legislative. A legislative bill, pro- 
viding a law for the future, and affecting no interests in being at 
the time, is not of frequent occurrence. A bill affecting, or which 
may affect, all the citizens indiscriminately, is purely public ; if it 
provides a code of general laws, to take effect at a futm-e time, and 
contains a saving of all existing rights or interests, it is also purely 
legislative. A bill by w^hich a foreigner is naturalized, — by which 
an individual is authorized to change his name, — or by which the 
tenure of an estate in which no one is interested but the proprietor 
is changed, — may be regarded as a private bill, without being 
judicial or legislative, and (the pubHc interest being so remote as 
to be practically nothing) without being pubhc in its character. A 
bill, which takes cognizance of and adjusts a private controversy, is 
judicial and private, but neither public nor legislative. A bill, 
which convicts an individual of an offence and inflicts punishment 
on him, is judicial, as it tries and punishes an offender, — private, 
as it affects the party concerned, — public, so far as the offence is 
of a public character and involving the interests of the whole com- 
munity, — and legislative, as it estabKshes or may establish a prece- 
dent for the future. 

756. It may be useful to indicate in what manner and to what 
extent the proceedings of a legislative body should be affected, 

1 See Peyton v. Smith, McCord's Keports, IV. 476; McCorcl, IL 440. 



Chap. IV.] forms of legislation. 299 

according as a measure before it is regarded as belonging to one 
or another of these different classes. A purely legislative measure, 
affecting no present interests, and entirely prospective in its opera- 
tion, may, to a certain extent, be regarded as an abstract propo- 
sition, and be determined upon higher and more general principles, 
than a measure merely public, affecting the present interests of the 
whole community, which must consequently be taken into consid- 
eration. Before passing a private bill, the consent of the party or 
parties is essential ; and, before proceeding with a judicial measure, 
the parties interested are entitled to notice and a hearing if they 
desire it. It will be seen, that, according to the course of proceed- 
ings in parliament, these principles are recognized and established, 
so far as they are susceptible of being reduced to practical rules. 
In practice, as bills seldom or never belong exclusively to any one 
of the classes above-mentioned, they take their distinctive appella- 
tions from the character which predominates ; the usual division 
being into public, private, and judicial ; the rules and course of pro 
ceeding applicable to which will now be briefly stated. 



1. Public Bills. 

757. In passing bills of this description, parliament acts strictly 
(though not always exclusively) in its legislative capacity. As the 
sovereign legislative power, it originates all those measures, which, 
in its judgment, appear to be demanded by or conducive to the 
pubhc good ; it undertakes and conducts all such inquiries as may 
be necessary to obtain for it the information which it needs ; and it 
enacts laws, with reference to such measures, and upon such infor- 
mation, according to its own wisdom and judgment. The forms, 
in which its deliberations are conducted, are established principally 
and primarily for its own convenience ; its proceedings are inde- 
pendent for the most part, of individual parties ; persons interested, 
or deeming themselves so, may indeed bring their wishes and 
opinions to the knowledge of parliament by means of petitions, 
and, in peculiar cases, may be heard ; but individual parties do not 
ordinarily participate in the conducting of the business, nor are 
they, as parties, supposed to have, or entitled to have, any imme- 
diate influence upon the judgment of parliament.^ 

1 May, 487, 488 



300 LEGISLATIVE ASSEMBLIES. [PaRT IV 



2. Private Bills, 

758. It being rarely the case, as already remarked, that a private 
bill is not also at the same time to some extent judicial, — inasmuch 
as that which is for the particular benefit of some persons may be 
injurious to others, — it is almost always necessary in proceeding 
upon private bills, to discriminate between the conflicting interests 
of different parties. In passing private bills, therefore, the proceed- 
ings of parHament, though legislative in point of form, partake 
also of a judicial character. The persons, whose private interests 
are to be promoted, appear as suitors ; while those who apprehend 
injury are admitted as adverse parties in the suit. All the formali- 
ties of a court of justice are maintained ; various conditions are 
required to be observed and their observance to be strictly proved ; 
if the parties do not sustain the bill in its progress, by following 
every regulation and form prescribed, it is not forwarded or suffered 
to proceed, by the house in which it is pending; if the parties 
abandon it, and no other parties undertake its support, the bill is 
lost, however sensible the house may be of its value. The analogy, 
which all these circumstances bear to the proceedings of a court of 
justice, is further supported by the payment of fees, which is 
requu-ed of every party promoting or opposing a private bill, or 
desiring or opposing any particular provision, and also by the 
employment of parliamentary agents, by whom every private bill is 
solicited. Courts of equity, also, look upon the solicitation of a 
bill in parhament in the light of an ordinary suit, and wHl in a 
proper case restrain the promoters by injunction from proceeding 
with, or petitioners against from opposing. This union of the 
judicial and legislative functions is not confined to the forms of 
procedure, but is an important principle in the inquiries and 
decision of parKament upon the merits of private biUs. As a court, 
it inquires and adjudicates upon the interests of private parties ; as 
a legislature, it is watchful over the interests of the public. The 
promoters of a bill may prove, beyond a doubt, that their own 
interest wiU be advanced by its success, and no one may complain 
of injmy, or urge any specific objection ; yet, if parliament appre- 
hends that it will be hurtful to the community, it is rejected as if it 
were a public measure, or qualified by restrictive enactments, not 
solicited by the parties.^ The same principles prevail, to a greater 
or less extent, in the practice of our legislative assembfies. 

1 May, 488, 489. 



Chap. IV.] forms of legislation. 301 



3. Judicial Bills. 

759. The terms public and private are in common use, in parlia- 
mentary proceedings, to denote the two kinds of bills above men- 
tioned. The term judicial has been adopted to designate a class of 
biUs equally distinct and specific in its character ; embracing in a 
civil sense, among others already alluded to, aU bills founded on a 
claim of right against the government, as for a debt, and in a crimi- 
nal sense, bills of attainder, pf pains and penalties, and disqualify- 
ing and disabling biUs. The great principle, to be observed in pro- 
ceeding upon this description of biUs, both civil and criminal, is, that 
the parties interested are to have an opportunity to be heard, if they 
desire it, in as full and ample a manner as if their cause was on 
trial in a court of justice. 

760. The power of parliament, to punish offenders by statute, 
belongs to the highest attributes of sovereignty. In passing biUs 
for this purpose, the proceedings are the same as in regard to other 
bills ; they may be introduced into either house ; they pass through 
the same stages ; and, when agreed to by both houses they receive 
the royal assent in the usual form. The two houses are thus judges 
of equal jurisdiction and responsibility ; and a conviction and con- 
sequent punishment can only take place by the concurrent act of 
the three branches of parliament. In these proceedings the prose- 
cution is conducted, on the part of the government, by counsel and 
witnesses, and the parties against whom they are directed are ad- 
mitted to defend themselves by counsel and witnesses ; that is, a 
solemn trial takes place, or may take place, in each house. In both 
houses, the members decide as well upon the law as the fact ; but 
in the house of lords, the judges are in attendance to give their 
opinion and advice as to matters of law. In modern times, trials 
of this description have been conducted in a manner analogous to 
the proceedings in a court of justice ; the ordinary rules of evidence 
observed in courts of justice have been strictly adhered to ; and the 
utmost solicitude has been manifested, that the parties implicated 
should be fuUy heard and fairly tried.^ In evil times, this power 
has been perverted and abused ; and, at all times, it cannot but be 
regarded with great jealousy .^ The American constitutions, gener- 



1 The most remarkable instance of this Queen's Case, Broderip & Bingham's Reports 
mode of proceeding, in modern times, is The 11. 287. 

2 May, 484, 486. 

26 



302 I^GISLATIVE ASSEMBLIES. [PaKT IV. 

ally, contain express prohibitions, restraining the legislature from 
the exercise of this power. 



Section II. Of certain Classes of Laws which are withheld 
FROM the Legislative Authority, or regulated, by Constitu- 
tional Provisions. 

761. In the constitutions of the United States and of the several 
States, there are various provisions, by which legislative bodies are 
prohibited from passing laws, -^ath reference to particular topics ; 
and besides these they also contain prohibitions with reference to 
certain classes of laws, which it is proposed to notice. 

762. In the constitution of the United States, there are two pro- 
visions of this description, first, a provision, prohibiting congress 
■from passing bills of attainder, and ex post facto laws ; and secondly, 
a provision, prohibiting the several States from passing bills of 
attainder, ex post facto laws, and laws impairing the obligation of 
contracts. 

763. The constitutions of the several States contain similar pro- 
hibitions, which may aU be arranged in the following classes, namely, 
1. BiUs of attainder, of pains and penalties, and declaring guUty of 
treason or felony ; 2. Ex post facto laws ; 3. Laws impairing the 
obhgation of contracts ; and, 4. Retrospective laws. 

764. I. Bills of attainder. Some of the constitutions prohibit 
the passing of bills of attainder generally. In England, when sen- 
tence of death is passed upon a person who is convicted of an 
offence, he is said to be attainted, that is, stained and rendered in- 
famous. Bills of attainder are therefore such as convict the party, 
against whom they are directed, and at the same time, sentence 
him to the punishment of death therefor, and, which are followed 
by a loss of the power of transmitting real estate to his heirs, and 
a forfeiture of both real and personal estate. This is supposed to 
be the strict sense of the terms, bill of attainder. 

765. In some of the constitutions, the prohibition is, that no per- 
son shall be attainted of treason or felony by the legislature. This 
seems to confine the prohibition, in terms, to cases of the description 
of treason or felony, according to the existing laws, and to leave the 
legislative bodies at hberty, unless restrained by some other provis- 
ion, to pass bills of attainder with reference to other offences. 

766. In other States, the provision is that no person shall be 
declared, by the legislature, guilty of treason or felony. The pur- 



Chap. IV.] forms of legislation. 303 

pose of this provision was doubtless the same with the last men- 
tioned ; but a different construction is possible ; inasmuch, as it 
might be said, that attainting implied the punishment of death, 
and that declaring a party guilty of treason or felony did not ; and 
thus this provision might receive a broader meaning than the 
former. 

767. Bills of pains and penalties are such as declare a person 
guilty of some offence, not punishable with death, and prescribe the 
punishment to be inflicted therefor. Laws of this description do 
not appear to be within the prohibition as to bills of attainder, and 
unless restrained by some other prohibition a legislative body might 
enact such. 

768. Various other constitutional provisions exist, which might 
restrain the power of the legislature to pass bills of this description, 
such as the separation of the judicial, legislative, and executive 
functions ; and perhaps they would be held so utterly at variance 
with the spirit of our government and institutions as not to be con- 
sidered within the ordinary powers of a legislative body. At all 
events, the occasions must be extremely rare, on which there is 
lilvcly to be any call for legislation of this sort. 

769. II. Ex post facto laws. These terms are sometimes used 
to denote retrospective laws, but, in strictness, they embrace only 
such as inflict punishment for acts, which, at the time they were 
done, were not legally punishable. The constitution of Massachu- 
setts does not use the term ex post facto, but language descriptive 
of such laws, namely : " Laws made to punish for actions done 
before the existence of such laws, and which have not been declared 
criminal by previous laws." In Maryland, North Carolina, and 
Tennessee, the constitutions first describe ex post facto laws, in the 
sense above explained, and then prohibit them in express terms. 

770. III. Laws impairing the obligation of contracts. This 
branch of legislation opens too wide a subject altogether to be taken 
up in connection with parliamentary law. 

771. IV. Retrospective laws. Several of the State constitutions 
prohibit the passing of laws of this description in general terms. 
In New Hampshire, the provision is, that " because retrospective 
laws are highly injurious, oppressive, and unjust, no such laws 
should be made, either for the decision of civil causes, or the pun- 
ishment of offences." It is not supposed that this adds any thing to 
the force of the general expression. The term retrospective applies 
as well to civil as to criminal proceedings, and therefore embraces 
ex post facto laws. Retrospective laws have been reprobated as 



304 LEGISLATIVE ASSEMBLIES. [PaRT IV. 

unjust, but, unless expressly forbidden by some constitutional pro- 
vision, they appear to be in the power of a legislative body to 
pass. 

772. Besides these and other constitutional provisions, which 
withdraw certain subjects altogether from ordinary legislative 
action, there are also others, which relate to the form or course of 
proceedmg on particular classes of bills. In the former case, the 
court, which decides upon the constitutionality of every act, judges 
of it by what appears upon its face. In the latter, the court must 
first decide whether the act in question belongs to a particular 
class ; and, secondly, whether the requisite forms have been pur- 
sued. This subject will be further considered in connection with 
the forms of proceeding in the passing of biUs. 



CHAPTER FIFTH. 

OF THE RULES OE LAWS BY WHICH THE PROCEEDINGS OE A LEGIS- 
LATIVE ASSEIVIBLY ARE REGULATED. 



Section I. General View of the Forms and Rules of Pro- 
ceeding. 

773. The business of every court or tribunal, which is of a per- 
manent character, and whose functions are set in motion upon 
apphcations made to it from without, is regulated by settled forms 
and methods, which constitute what is called the style or practice 
of the particular court. Rules of this description, which prescribe 
the terms, conditions, and modes of proceeding, between the tribu- 
nal and those who resort to it for the exercise of its functions, 
make a part of the law of the land, and are binding upon the tiibu- 
nal itself until abrogated or modified. 

774. But besides the external business of the court, there are 
also deliberations, consultations, and debates, among its members, 
(where it is composed of more than a single individual,) in forming 
the judgments which it promulgates ; and these proceedings, even 
when of the simplest character, requhe nevertheless to be con- 
ducted in a greater or less degree according to settled methods and 



Chap. V.] rules of proceeding. 305 

forms. The rules, by which these internal proceedings are regu- 
lated, are of a different nature from the former ; they do not, strictly 
speaking, form a part of the practice of the court ; they are the law 
of the members of which it consists; and they may not only be 
abrogated or repealed, but dispensed with or disregarded, at its 
pleasure. In all courts, tribunals, councils, and official boards of 
every description consisting of several members, both these systems 
are in use; the one or the other predominating, according to the 
nature of the functions exercised by each particular body. In 
iudicial courts the rules of proceedings relate more to the external, 
in legislative bodies more to the internal, course of business. The 
laws, by which the proceedings of legislative assemblies are regu- 
lated, and which are now to be considered, belong to both classes, 
but chiefly to the latter. 

775. If a deliberative body is composed of but few members, it 
will have little occasion for rules to govern its internal proceedings, 
whatever may be the nature or extent of its powers ; if its poweit 
are limited, and in proportion as they are limited, it will have as 
little occasion for rules of proceeding, however great its numbers 
may be ; if its numbers are considerable, and its powers extensive, 
settled rules and methods of proceeding are indispensable to a 
proper discharge of its functions. A committee of three or five 
members is an example of the first kind of deliberative body; a 
grand-jury, though not a numerous body, furnishes a good example 
of the second ; the two houses of the British parliament, and the 
legislative assemblies of the United States, belong to the third. 

776. It is highly important to the preservation of order, decency, 
and regularity, in a numerous assembly, and not less essential to 
its power of harmonious and efficient action, that its proceedings 
should be regulated by established forms and methods ; and, with a 
view to these purposes, it is more material, perhaps, that there 
should be rules established, than that they should be founded upon 
the firmest basis of reason and argument;^ the great object being 
to effect a uniformity of proceeding in the business of the assembly, 
securing it at once against the caprice of the presiding officer, and 
the captious disputes of members. It is to the observance of regu- 
larity and order among the members, that the minority look for pro- 
tection against the power of the majority;^ and in the adherence to 
established forms, between the different branches, that each finds 
its security against the encroachments of the others.^ 

i HatseU, II, 207, 208. « Pari. Roc;- XL VI. 28, Hatsell, III. 25, not* 



306 ■ LEGISLATIVE ASSEMBLIES. [PaRT IV. 



Section II. Sources of Parliamentaet Rules. 

777. The forms and methods of proceeding in the British par- 
liament, — especially those which prevail in the house of commons, 
which has served as a model for most of the legislative assembhes 
of the present day, — are the fruit of more than two centuries of the 
wisdom and experience of that celebrated body. They are founded 
partly in usages which are nowhere recorded in express terms on 
the journals, but are constantly recognized and practised upon, as, 
for example, the rule that a bill, before passing, is to be read three 
times on three several days ; partly in resolutions and precedents 
of proceedings which are considered as declaratory "of the law and 
usage of parhament ; partly in orders made from time to time for 
the purpose of regulating the proceedings ; and partly in statutes 
or acts of parliament. 

I. Usages. 

778. The usages of parliament, by which is here intended the 
constant and usual method of proceeding, when not declared in 
any more dkect or specific manner, are to be collected from the 
entries in the journals ; from the history of parliamentary proceed- 
ings ; from the treatises on parliamentary practice that have been 
published from time to time ; and from the observations of experi- 
enced members, and the remarks of the speakers in the house of 
commons, v^dth relation to the forms and methods of proceedings, 
as contained in the published debates. There are doubtless many 
points, especially of modern practice, which can only be known by 
personal experience or observation. This is no inconsiderable 
source of parliamentary law in this country. 



II. Resolutions. 

779. Resolutions or declarations, entered in the journal, expres- 
sive of the opinion of the house relative to its rules or usages, 
constitute another source of parhamentary practice, of equal if not 
superior authority with that aheady mentioned. An example of 
this kind occm-s in an entry in the journals of the commons, under 
date of January 5, 1640, which is the only written evidence of the 
number of members necessary to form a quorum of that house, 



Chap. V.] rules of proceeding. 307 

namely : — "It was declared as a constant rule, that Mr. Speaker is 
not to go to his chair, till there be at least forty in the house." i 
Entries of a similar character are not unfrequent in the earlier 
journals. Sometimes a declaration of the rule takes place with 
reference to a question then pending, and for the purpose of decid- 
ing it; as, for example, where a petition was presented and read 
and the petitioners, on being called in, made a statement relative 
to the manner in which the petition was signed, on which a debate 
arose " touching the manner how petitions ought to be signed," 
the house resolved, " that the petitions presented to the house ought 
to be signed "by the petitioners, with their own hands, by then: names 
or marks." ^ 

III. Precedents. 

780. Precedents, though coming under the general head of usage, 
in its broadest signification, are nevertheless distinguishable from 
the sort of usages above spoken of; the former being only the occa- 
sional proceedings, the latter the constant and daily practice of 
parliament. Precedents, in parliamentary proceedings, have been 
established in substantially the same manner, and are regarded 
with equal respect, as those which have been established by the 
practice of the judicial courts. When any new case occurs, for 
which the anterior practice of parliament furnishes no rule of pro- 
ceeding, the usual course is to settle it upon a careful consideration 
of analogous cases, if any have occurred, and it then becomes a 
precedent for future proceedings. If the circumstances of the case 
are so peculiar that a proceeding ought not to be regarded as a 
precedent ; or, if, for any other cause, the house is unwilling that it 
should be so regarded, the usage is to make an entry on the jour- 
nal, that what has thus been done is not to be drawn into precedent. 
The journals contain many entries of this sort, 

781. It is the constant practice, also, on the occurrence of a new 
point of parliamentary practice, for the house to suspend its pro- 
ceeding upon the matter out of which it arises, and, in the mean 
time, to appoint a committee to search the journals for precedents 
of " what hath been done in like cases," and, upon their report, to 
settle the point, either by a distinct resolution declaratory of the 
law and usage of parliament, or by the form of its proceeding upon 
the matter in question. If the report of the committee is, that it 
finds no precedents, the question must be settled, as akeady sug- 

1 Coram. Jour. II. 63. ' Comm. Jour. X. 285 



308 LEGISLATIVE ASSEMBLIES. [PaRT IV. 

gested ; if it reports a series of precedents on both sides, it is for 
the house to decide which is the most worthy of its deliberate 
sanction ; if the precedents are found to be uniform, this, of com-se, 
settles the question. 

782. Another and a frequent course, when a question of practice 
arises, is, to move for the reading of proceedings from the jom-nals, 
in analogous cases, and thereupon to come to a decision, without the 
delay of a committee to search for precedents. The advantage of 
the latter mode is, that it enables the house to see the precedents 
on both sides, if the practice has not been uniform ; whereas the 
former only presents those cases, which can be brought to mind at 
the moment, or which may have been carefully selected for the par- 
ticular pm-pose.i 

783. The value of precedents must depend, of course, partly 
upon the character of the proceedings to which they belong ; partly 
upon that of the assembly by which they are established; and 
partly upon that of the times in which they occur. Some parha- 
ments have been more observant than others of what belongs to 
regularity of proceeding ; some have carried their pri^oleges to a 
much greater extent than would now be considered warrantable ; 
some have been occupied rather with administrative than with 
legislative functions. JNIr. Hatsell rejects as precedents all the pro- 
ceedings in both houses, from the 4th of January, 1641, (when the 
king, Charles I., went in person to the house of commons, for the 
purpose of arresting certain members,) to the restoration, on the 
ground that,^ "however necessary to protect the State from the 
return of arbitrary power, and however excusable from the very 
particular circumstances of the times, or justified by the confusion 
into which the government was' thrown by the conduct of the king, 
they cannot be considered as precedents to be followed in times of 
peace and quietness." The value ascribed to precedents, in the 
parliamentary law of England, is not less in this country ; but 
their existence does not appear to be ascertained in the same formal 

, and solemn manner.^ 

IV. Orders. 

784. Orders, which constitute a fom-th source of the law and 
practice of parliament, are the rules and regulations, or, in other 

1 Hansard (31, XLV. 505, 506. Cong. 2d Sess. 1777; Eeg. of Deb. VL Part L 

2 HatseU, L 223. 2; Cong. Globe, XI. 133, ItO, 238; Same, 
8 See J. of S . ffl. 332; Ann. of Cong. 4th XV. 529. 



CUAP. v.] RULES OF PROCEEDING. 309 

words, the by-laws, which have been expressly agreed upon by 
either house, for the government of its own proceedings. Orders 
of this description, which are analogous to general laws, must not 
be confounded with those orders which are constantly made with 
reference to matters pending in either house, and by means of 
which the business of the house is carried on. The orders now 
under consideration may be divided into three kinds : 1. Standing 
orders ; 2. Sessional orders ; 3. Occasional orders, or those which 
are undetermined in regard to their duration. 

1. Standing- Orders. 

785. The orders of both houses, which are known by the name 
of standing orders, are those which they have from time to time 
agreed to, for the government and regulation of their proceedings, 
and which they have declared to be standing orders. Orders of this 
description do not expire with the session or parliament, in which 
they are made ; but endure from one parliament to another, and 
are of equal force in every succeeding parliament, until vacated, 
rescinded, or abrogated, by the house in which they are established.^ 
A standing order is sometimes made at once, but, not unfrequently, 
an occasional order or resolution of a previous session or parliament 
is revived and declared to be a standing order. Thus a resolution 
of the house of commons of December 11, 1706,'^ " that this house 
will receive no petition for any sum of money relating to public ser- 
vice, but what is recommended from the crown," was revived June 
11, 1713, and declared to be a standing order, and has ever since 
been observed as such.'^ The system of standing orders, which 
plays so important a part in the proceedings of the English parlia- 
ment, has no existence in the legislative assemblies of this country. 
The nearest approach to it is found in the rules and orders of the 
senate of the United States, and other similarly constituted bodies. 
That branch being a permanent body, containing always more than 
a quorum of its members, and being duly organized, its rules and 
orders are not renewed from one congress to another. 

2. Sessional Orders. 

786. It has been the practice of the two houses, for a long period, 
at the commencement of each session, to agree to certain orders 

1 A standing order cannot be dispensed with ^ Comm. Jour. XV. 211. 
i»y one house for a succeeding house. Hans. ^ Comm. Jour. XVII. 417 
■8) LV. 14. 



310 LEGISLATIVE ASSEMBLIES. [PaRT IV 

and resolutions, w-hich are regularly renewed in every succeeding 
session, and which are consequently intended to endure only during 
the session in which they are made. These orders are known by 
the name of sessional orders. They relate in part to what may be 
called the police of the house ; and are in part merely subsidiary to 
the Imown law and usage of parliament. The sessional orders of 
the house of commons, which are usually made at the present time 
relate to the appointment of the committee of privileges ; the pun- 
ishment of false evidence and tampering with ^^'itnesses ; the time 
■udthin wliich election proceedings are to be commenced ; the taking 
of strangers into custody ; the keeping of the passages to the house 
clear of obstruction ; the recei^dng and distributing of letters ad- 
dressed to members, etc. These are the only permanent orders, 
which have any existence in this country ; and all orders are merely 
sessional, that is, they last dm'ing the session in which they are 
made, unless other^dse expressed to be made for a longer or shorter 
time. It is supposed to be competent for a legislative assembly to 
bind itself, if it thinks fit, for a succeeding session. 

3. Occasional Orders. 

787. Orders of this kind do not differ from standing orders, in 
any other respect, than that they are binding only during the session 
at which they are made. K declaratory of a general law or usage 
of parliament, they are obsers^ed as such, after the expiration of the 
session. If introductory of a new usage, which is found beneficial, 
they may be declared to be standing orders, or may take the form 
of sessional orders. The order of the commons first adopted in 
1833, for the holding of morning sittings, for private business and 
petitions, was an occasional order, which was renewed only in the 
next session, after wliich the morning sittings were discontinued. 

V. Statutes. 

788. Although it is not in the power of one legislatm-e to make , 
la\\''s Vv^hich a succeeding legislature shall be bound not to repeal ; 
yet it is nevertheless competent to any legislature if not other^dse 
restrained, to regulate by statute the future proceedings of the 
separate branches. The principal regulations, in the house of com- 
mons, which are derived from this source, are those which relate to 
the trial of controverted elections. 

789. To the same head of statutory regulations belong those pro- 



Chap. V.] " rules of proceeding. 311 

visions relating to legislative proceedings, which are sometimes 
inserted in the constitution ; as, for example, that every bill shall be 
read three several times ; that certain bills shall not pass but by a 
certain specific majority ; that money bills, or bills for raising a 
revenue, shall originate in the most popular branch. 

790. The foregoing are the several sources of the law and prac- 
tice of parliament, by which the proceedings of its several branches 
are regulated. They are of different degrees of authority. A stat- 
ute regulation supersedes, and cannot be abrogated by, any order 
of the house to which it applies. An express order of the house, 
whether standing or occasional, supersedes every mere usage or 
precedent. In the absence of any express order " what can or ought 
to be done by either house of parliament, is best known by the 
custom and proceedings of parliament in former times." ^ 



Section III. Of the Rules by which Legislative Assemblies 
IN this Country are governed. 

791. The sources of parliamentary rules, which have been above 
described, are the sources of the parliamentary law of this country, 
as well as that of the British parliament, through which they are 
derived, but, in different degrees, perhaps, to our legislative assem- 
blies. The ways and methods of parliament, so far as they are 
applicable, have been adopted in this country ; and to these have 
been added such parliamentary usages of our own, as have been 
adapted to the wants of legislative assemblies in this country. The 
latter are strictly analogous to and merely extend the former. 
These usages lie at the foundation of many of the written rules 
by which our legislative assemblies are governed, and which are 
the principal source and depositary of parliamentary law in this 
country. 

792. In the American constitutions it is provided, generally, that 
each house shall have the right to determine the rules of its own 
proceedings. No legislative assembly, therefore, can make any 
rules, which shall be binding upon its successors, even until abro- 
gated or rescinded by them. Hence the system of standing orders 
is not in use in our legislative bodies ; but it is the invariable prac- 
tice, for each of them, soon after its first meeting and organization, 
to frame and adopt a code of written rules for the government and 
regulation of its own proceedings. The rules of the different assem- 

1 HatseU, IV. 491, note. 



312 LEGISLATIVE ASSEMBLIES. ' [PaET IV. 

blies, throughout the Union, which differ greatly both in numbers 
and in quantity of business, are, of course, very different ; but each 
is adapted to the peculiar vrants and condition of the assembly by 
"vrhich it is formed ; and all are founded in and recognize the usages 
and methods of parliament. The code of rules, -^^hich each house 
thus adopts for itself, commonly undergoes amendments and re- 
ceives accessions, diuing the session ; and being adopted by each 
successive house, the system of rules in force in each has attained 
and preserved an uniform and consistent character, and, in process 
of time, has grown to considerable size. But though each house 
may and does determine its rules of procedure, it does not follow, 
from this principle, that, until it adopts rules, a legislative assembly 
is enthely destitute of rules for the government of its proceedings. 
It is, in the mean time, governed by what may be called the com- 
mon parliamentary law, that is, so much of the usages and methods 
of parliament, as are of general application, modified by usage and 
practice in this country. 

793. The result of the foregoing considerations is, that, after a 
legislative assembly meets, and until it adopts rules and orders, it 
is governed and its proceedings regulated by the common parlia- 
mentary law ; ^ and that when it has adopted rules and orders of 
its own, it is governed partly by them, in cases to which they apply ; 
and paniy in all cases to which the rules and orders are not appli- 
cable, by rules drawn from the common parhamentary law as above 
explained.- 

794. But, though it is essential to regularity of proceeding, that 
a legislative assembly should possess rules and orders for its gov- 
ernment, and that every member should have the right to insist 
upon then- observance ; yet a member may waive his right, and the 
assembly itself, on a proper occasion, may dispense \^*ith its ow^n 
rules. Hence it is an estabhshed practice, in all our legislative 
assembhes, to do any matter, or to take any course of proceeding, 
which is contrary to the rides, provided it is done by general con- 
sent, that is, no member interposing an objection. Hence, also, it 
is an estabhshed practice, whether an individual objection is prop- 
erly interposed or not, for the assembly itself, on a motion and 



1 J. of H. 27th Cong. 1st Sess. 36, 52 ; Cong, cases to Tvhich thev are applicable, and in 
Globe, IV. 99 ; Cong. Globe, XI. 341. M-hich they are not inconsistent Tirith the 

2 The 139th rule of the house of representa- standing rules and orders of the house and 
tives in congress provides, that " The rules of the joint rules of the senate and house of 
parliamentaiy practice, comprised u Jeflfer- representatives." 

son's Manual, shaU govern the hoUi«, in aU 



Chap. V.] rules of proceeding. 313 

vote to that effect, to dispense with any one or all of its rules, on 
some particular occasion^ The assembly may, in this way, dis- 
pense %vith its unwritten as well as its written rules and unless 
otherwise required in the rules themselves, the dispensing may take 
place by the ordinary major vote. These rules, touching the dis- 
regarding of the rules, by general consent, and dispensing with 
them by a vote, apply only to the rules which the assembly has 
itself adopted, and not to those which are prescribed by constitu- 
tion or law, and which cannot be abrogated even by general con- 
sent. 



Section IV. Of the Forms in which the Proceedings of a 
Legislative Assembly are expressed. 

795. The various topics, which engage and occupy the attention 
of a legislative assembly, are brought to its notice, either by the 
communications which are made to it from external sources, as, for 
example, the executive or the other branch, — official bodies or 
persons, — its constituents; or from the suggestions of its own 
members, relative to matters of public concern, in which it has 
jurisdiction to interfere. 

796. In proceeding upon the matters thus brought before it, the 
principal forms or instruments made use of by the house are motions, 
orders, resolutions, addresses, biUs ; all of which wUl be fuUy treated 
of and explained hereafter; it being at present only proposed to 
give some general idea of certain of these parts of the mechan- 
ism of parhamentary proceedings. 

1. Motion or Vote. 

797. A motion is a proposition made to the assembly by one 
member, and seconded by another, that the assembly do something 
or order something to be done, or express an opinion with regard to 
some matter or thing. K the proposition is agreed to, it becomes 
an order, or resolution, or whatever else it purports to be. Every 
matter of business must be commenced and set in progress by 
means of a motion, in the first instance, and must be carried for- 
ward, at every stage of its progress, in the same manner. If not 
thus forwarded, a measure remains precisely where it is left by the 
last proceeding upon it. 

27 



814 LEGISLATIVE ASSEMBLIES. [PaRT IV. 



2. Order. 

798 When the house directs or commands any thing to be 
done, either by its members, its officers, or others, its t\t11 is 
expressed in the form of an order ; thus, it orders that a petition 
be referred to a committee, — that it lie on the table, — that it be 
printed ; that a bill be read the first, second, or third time, — that it 
be engrossed, — that it be committed or printed ; that certain per- 
sons attend the house; that a debate be adjourned; that a certain 
person be taken into custody. When the house orders any thing 
to be done by itself, or, in other words, forms and declares its inten- 
tion to do something in the ordinary course of its proceedings, it 
expresses itself in the form of a resolution ; as, that it "will resolve 
itself into a committee of the whole on a given day, — or that a 
bill do pass. Resolutions of this kind, must not be confounded 
with resolutions properly so called. 



3. Resolution. 

799. When the house expresses any opinion, with reference to 
any subject before it, either public or private; or its will to do 
something at a given time, (not incidental to the ordinary course 
of business) ; or declares its adoption of general orders relative to 
its proceedmgs ; in aU these cases, it expresses itself in the form of 
resolutions ; thus it resolves upon the sessional and standing orders ; 
that a standing committee be appointed ; that the explanation given 
by a member is satisfactory ; that private petitions be not received 
after a certain time ; that it entertains certain opinions ; that the 
thanks of the house be given to certain persons. It is not easy to 
understand, so as to describe with accuracy, aU the occasions on 
which the one or the other of these terms, ordered or resolved, is 
most proper.^ Besides, the use of them does not appear to be 
uniform. In the earlier journals of the house of commons, those, 
for example, of a hundred and fifty years ago, the word resolved is 
irequently used, where the "word ordered would now be found. 
Perhaps the distinctions above indicated may be sufficient to sug- 
gest the proper use of these terms. It is often very important to 

^""ttTierL the house commands, it is by the form of resolutions." Jefferson's Manual, 
an 'order.' But fact, principles, their own § XXI. 
opinions, and purposes, are expressed in 



Chap. V.] rules of proceeding. 815 

distinguish "orders," on the one hand, and "joint resolutions,'' 
on the other, from " resolutions," properly so called, as the different 
classes of papers are ordinarily subject to different rules of proceed- 
ing.! 

800. It is a common course of proceeding, for the house to agree 
to certain resolutions, either reported by a committee, or introduced 
by a member, as the basis of proceedings to be afterwards insti- 
tuted, in the form of an address, impeachment, or biU ; in which 
case, the practice is to refer the resolutions to a committee for the 
purpose of being put into the proper form. Resolutions of this de- 
scription are sometimes made the joint act of both branches, by 
being first agreed to in one branch, and then sent to the other for 
its concurrence. 

801. Orders or resolutions, by whichever name they may be 
called, which direct the doing something prospectively by the 
assembly itself, or that it will, at a given time, do a certain thing, 
must be carefully distinguished from those which require the doing 
of a thing by an individual member, even though the execution 
of the order will have an effect upon the business of the house. 
In the latter case, when the time arrives, the individual or member 
upon whom the order is made, proceeds to execute it in the manner 
therein directed. In the former case, the house must determine, 
when the time arrives, whether it will then proceed to execute its 
own intention or not ; for no resolution of the house, however 
stringently expressed, can ever constrain or absolutely bind itself to 
the doing of a future act. Thus if the house directs the speaker, at a 
given point of time to adjourn the house,^ on the arrival of the time 
in question, he pronounces the house adjourned accordingly ; but, 
if the house makes a special order for the consideration of a par- 
ticular subject at a given time, or assigns a time therefor by resolu- 
tion, it must, on the arrival of the time, determine, by a question, 
whether it will then proceed to execute its own intention or not. 



4. Address. 

802. An address is the form in which the wishes or requests of 
the two houses, or either of them, are expressed and made known 
to the executive. In England this form of proceeding is not infre- 
quent ; the sovereign being addressed in answer to the royal speech 

1 J. of H. 32d Cong. 1st Sess. 679; Cong. 2 Cong. Globe, XIII. 214, 215. 
Globe, XVII. 281. 



316 LEGISLATIVE ASSEMBLIES. [PaUT IV. 

at the commencement of the sessions — for copies of papers, — and 
for other important information, — expressing confidence, or the 
want of it in ministers, — or for the removal of public officers hold- 
ing their appointment under the crown. In this country, addresses 
were formerly in frequent use ; but at the present day, they are 
chiefly resorted to, being provided for the purpose, and regu- 
lated by the several constitutions, for the removal of judicial 
officers. 



LAW AND PRACTICE 



oi> 



LEGISLATIVE ASSEMBLIES. 



PART FIFTH. 



OF COTiEMUNICATIONS BETWEEN THE DIFFERENT BRANCHES 

OF A LEGISLATIVE BODY, AND BETWEEN THEM OR EITHER 

OF THEM AND OTHER BODIES OR PERSONS. 

(317) 
27 • 



LAW AND PRACTICE 



OF 



LEGISLATIVE ASSEMBLIES. 



PAET FIFTH. 



OF CO]\C\IUNICATIONS BETWEEN THE DIFFERENT BRANCHES 
OF A LEGISLATIVE BODY, AND BETWEEN THEM OR EITHER 
OF THEM AND OTHER BODIES OR PERSONS. 



803. Having treated, in the preceding parts of this work, of the 
election, constitution, and incidental powers, of a legislative assem- 
bly, and enumerated its general powers and functions, it will now be 
useful, also, before describing its forms and methods of proceeding, 
within itself, to consider the relations which it bears to other bodies 
and persons without, by means of a communication with which its 
business is not only conducted, but it obtains possession of the 
materials upon which the greater part of its proceedings are 
exercised. This part is therefore devoted to the subject of the com- 
munications which take place between the two houses ; between 
either of them and the executive ; and between them or either of 
them and other official bodies or persons, or individuals, or the pub- 
lic in general ; in the course of the performance of their legislative 
and other official functions. These several subjects are arranged 
and treated of under the following heads or divisions, namely : — 
I. Communications between the two Houses; II. Communica- 
tions of the two Houses, or either of them, with the Executive ; 

(319) 



320 LEGISLATIVE ASSEMBLIES. [PaRT V 

III. Accounts, — Papers, — Returns ; — presented in pursuance of 
Orders, or in obedience to Acts of Parliament ; IV. Witnesses, and 
their Attendance and Examination, before either House, or Commit- 
tees ; V. Hearing Parties interested ; VI. Public Officers subject 
to the Order of the House ; VII. Petitions. 



CHAPTER FIRST. 

OP COMMUNICATIONS BETWEEN THE TWO BEANCHES. 

804. The two branches of a legislative assembly being members 
of the same body ; convened and sitting at the same time ; charged 
wdth the performance of the same or analogous functions ; simul- 
taneously engaged in the exercise of those functions ; and required 
by their constitution, though proceeding separately and indepen- 
dently, to concur in the doing of every legislative act ; they have 
frequent occasion, both in the incidental and preliminary, as well 
as the final, proceedings, to communicate with each other, in refer- 
ence to the several matters about which they are employed. The 
regular modes, by which these ■ communications take place, are 
three, namely : — I. By message ; II. By conference ; and. III. By 
committees. 

Section I. Communications by Message. 

805. This form of communication, which is the most simple, and 
the most frequently resorted to, consists, as its name indicates, in 
the sending of a member, or other appropriate person, by the one 
house to the other, either to inform the latter of some fact, or to 
communicate some request, or both, on the part of the former. 
Messages pass between the two houses for a great variety of pur- 
poses, but more especially at the present day in relation to the 
proceedings on bills. These purposes will be particularly noticed, 
in connection with the subjects to which they relate. At present, 
the forms of proceeding only are to be adverted to. Messages are 
also the commencement of the other and more important modes of 
intercourse between the two houses, by means of conferences and 
committees. 



Chap. L] communications by message. 321 

806. Messages from the lords to the commons are not sent by 
members, but ordinarily by two of the masters in chancery, who 
are attendants upon the lords ; and, on special occasions, by two of 
the judges, who are their assistants. The special occasions, on 
which the latter are sent as messengers, occur, for the most part, 
though there are others,^ when bills relating to the crown or royal 
family are to be sent to the commons.^ 

807. If the persons, who are regularly to be employed as mes- 
sengers from the lords, do not happen to be present, when a mes- 
sage is to be sent, other persons attending the lords are substituted 
in their stead. If the judges are on the circuit, or, for other causes, 
only one is in attendance, when an occasion occurs for sending a 
message by them, the message may be sent by one judge and one 
master in chancery. If, on ordinary occasions, two masters in 
chancery do not happen to be in attendance, a message may be 
sent by one master and the clerk assistant; or, if no master in 
chancery is present, the clerk assistant, and the additional clerk 
assistant, or the reading clerk may be sent with the message. 
Whenever a message is sent in this manner, the lords at the same 
time acquaint the commons with the reasons which have induced 
them to depart from the ordinary practice ; and the commons, on 
receiving the message, immediately come to a resolution, which, 
at a convenient time, either immediately or after an interval of 
some days, they communicate to the lords by messengers of 
their own, acquiescing in the reasons assigned by the lords, but 
" trusting that the same will not be drawn into precedent for the 
future." 3 

808. Messages from the commons to the lords are always sent 
by members. The ancient and accustomed form is to send by one 
member, who, upon motion made, and question put, is named by 
the house as the bearer of the message. The member, thus ap- 
pointed, is usually selected either from having been the promoter, 
or having had charge, of the bill which is to be sent, or for his known 
approbation of the subject-matter of the message. But the bearer 
of the message, though a single member, must be accompanied by 
others, to the number of seven at least ; as it is the rule and prac- 
tice of the house of lords not to receive a message from the com- 
mons, unless eight members attend with it.^ The member, selected 

1 Comm. Jour. IX. 351. which formed a quorum of a select committee, 

* May, 319, 320. and was probably, for this reason, adopted as 

* May, 319, 320. the number for carrying a m'jssage to th« 

* " Eight was fonnerly the common number house of lords." May, 320. 



322 LEGISLATIVE ASSEMBLIES. [PaRT V 

as the bearer of the message, is not at liberty to decline the ordei 
of the house, or to neglect or refuse obedience to it, without being 
guilty of a contempt.^ The attendance of other members appears 
to be voluntary ; and, for the purpose of obtaining it, when the 
bearer of the message takes it from the table, the speaker always 
calls aloud to the house, " gentlemen, attend your messenger." In 
bills that have passed the house of commons with a general con- 
currence, and in other messages, in which the house of commons 
^dsh to show their approbation of the measure, it is customary for 
a great number of members to foUow the messenger, and to attend 
him to the bar of the house of lords.^ 

809. The form of receiving messengers from the commons in the 
house of lords, according to the standing orders of the latter house, 
is as follows. The messengers proceed to the house of lords, and 
signify the purpose of then* attendance to the usher, who informs 
the lords of the message. The lords, thereupon, if not engaged in 
any business, or first bringing the business in which they are en- 
gaged " to some end," send for the messengers, who are admitted 
and take their places at the lower end of the room. The lord 
chancellor then rises, and, with such lords as please, goes down to 
the middle of the bar ; then the bearer of the message, in the midst, 
and the rest about him, come up to the bar, making three obei- 
sances, and there delivers the message to the lord chancellor, who, 
after receiving it, retires to his place, and the messengers withdraw. 
AVhen the house is cleared and settled, the lord chancellor reports 
the message wdth the assistance of the other lords, if his memory 
happens to be at fault, in respect to any part of it, and the house 
then proceeds to consider the message.-^ 

810. The ceremony of receiving messages from the lords in the 
house of commons is thus described: " The messenger from the 
lords proceeds to the house of commons, and if that house be then 
engaged in business which V\iU not admit of imiuediate interrup- 
tion, he takes a seat below the bar until he can be received. It is 
usual, however, to admit him when the member then addressing 
the house has resumed his seat. For this purpose the sergeant-at- 
arms goes up to the table, making three obeisances, and acquaints 
the speaker that there is a ' message from the lords ; ' after which 
he retires to the bar. The speaker then acquaints the house that 
there is a message from the lords, and puts a question, that the 

1 Grey, IX. 305. s May. 321. 

» HatseU, HI. 27, 28. 



Chap. L] communications by message. 323 

messenger be now called in ; which being agreed to, as a matter of 
com'se, he dh'ects the sergeant to call in the messenger. The ser- 
geant again advances to ^e table, and takes the mace, wilh which 
he introduces the messenger, and walks up to the table of the house 
on his right hand. They both make three obeisances in coming up 
the house, and, on reaching the table, the master reads the message ; 
and, when there are bills, delivers them to the clerk of the house. 
The sergeant retires with him to the bar (both making obeisances), 
and then returns and replaces the mace upon the table." ^ 

811. If a message is of such a nature as to require an answer, 
the messengers remain in attendance in the lobby, for the purpose 
of receiving it. If the business admits of an answer being given 
immediately, the house proceeds at once to resolve upon the proper 
answer; and if it accedes to the request contained in the message, 
the messengers are called in and informed of it by the lord chan- 
cellor or speaker, as the case may be. If the business does not 
admit of an immediate answer, or if the business in which the 
house is engaged does not allow the message to be then consid- 
ered,2 or if the answer is in the negative,^ the messengers are called 
in and acquainted (in the lords they are sent to and informed by 
the usher) that the house will send an answer by messengers of 
its own.* 

812. In the commons, when a message is received from the lords 
by persons who are not ordinarily employed as messengers, with a 
statement of the reasons for deviating from the usual practice, no 
other answer is returned by the messengers, than that the house 
will send an answer by messengers of their own, even though the 
subject of the message is acted upon forthwith, and an answer 
agreed to. The answer is communicated by the commons to the 
lords by messengers of their own. The lords are also informed, at 
the same time, or by a separate message, that the commons have 
acquiesced in the reasons given by the former for deviating from 
the ordinary practice.'^ 

813. The messengers are to receive and communicate the an- 
swer, if there is one, to the message which they deliver ; or to 
inform the house to which they belong, that the other will send an 
answer by messengers of their own ; but it is not according to 
parliamentary usage, for the house to which a message is sent, to 

1 May, 321, 322. ♦ Hatsell, III. 29. 

2 Comm. Jour. IX. 152. 6 Pari. Reg. LVI. 638, 641 ; Comm. Jour. 
» Comm. Jour. I. 156, 200, 492, 498, 813. LV. 539, 542. 



324 leitISlative assemblies. [Paet V. 

send a message to the other by the messengers of that house.^ 
The same messengers may be, and often are, the bearers of several 
different messages at the same time ; an^ both the terms of the 
message, and the persons to be sent as messengers, are the subjects 
of orders, moved, debated, and agreed to, in the usual course of 
proceeding. 

814. The business of the house, by "U'liich a message is sent, is 
not interrupted "^'hile their messengers are proceeding to or are at 
the other house. But, in the house to which a message is sent, it 
is the practice to discontinue or suspend the business in hand, as 
soon as may be after the message is announced, so as not unneces- 
sarily to detain the messengers.^ Thus, if the house is in a com- 
mittee of the whole, when a message is sent to it, the committee 
rises and the house is resumed, for the purpose of receiving the 
message ; ^ so, when the house is engaged in debate, the business 
is suspended T\dthout a formal adjournment of the debate ; and the 
message received.^ If a member happens to be speaking, at the 
time the messengers attend, it is not usual to receive them until the 
member has resumed his seat ; but as this, in some cases, might 
amount to a very long detention, it is competent for the speaker to 
interrupt the member speaking,'^ or to interrupt a member in pre- 
senting a petition,'^ in order to receive the message. AVhen the 
message has been received and disposed of, either finally, or for the 
time being, the house again resolves into the committee, or pro- 
ceeds A\T.th the debate or other business which was interrupted ; the 
business being taken up precisely where it was suspended, and a 
member interrupted in his speech, or other proceeding, at the point 
where he was interrupted." But, though the admission of the mes- 
sengers, as above stated, is generally a matter of course ; yet, where 
the house is informed of then- attendance, a motion is always made 
and a question put, or supposed to be so, for caUing them in ; and 
this question may be (and on one occasion, at least, was) decided 
in the negative.® 

815. It appears to have been an ancient order, that one house 

1 HatseU, m. 22 ; H^itseU, IV. 35 ; Comm. * Pari. Eeg. XLIH. 56 ; Comm. Jour. LI. 
Jour. I. 426, 813. 5 ; Hatsell, IH. 30, 31. 

2 May, 322. '= Pari. Eeg. LXUI. 769, TTO; Cong. Globe, 

3 Grey, IT. 226; Same, IX. 148, 150, 153; XI. 618; Cong. Globe, XVIIL 167. 
Comm. Jour. X. 45; Hatsell, III. 30, 31; Cong. « Hansard (1), Y. 843. 

Globe, Vm. 509 ; Same, XI. 298, 358, 396 ; ' Pari. Eeg. LXIH. 769, 770. 

Same, XV. 685. » Comm. Jour. XVII. 614; see also J. of 

S. 23d Cong. 1st Sess. 325. 



Chap. L] communications by message. 325 

could not regularly send a message to the other, " but whilst both 
houses were sitting, the speaker of each house being in the chair ; " ^ 
but this rule is not now observed, and either house may agree 
upon and send a message to the other, although it is known that 
the latter has adjourned for the day.^ In such a case, the messen- 
gers proceed w^ith the message, as soon as the house to which it is 
to be delivered is sitting.^ When the sending of a message is un- 
der consideration, and it is feared that the house to which it is to 
be sent may adjourn before the message can be agreed upon, a 
message may be and very frequently is sent immediately to the 
latter, requesting them to continue to sit for some time, in order to 
receive a message.^ 

816. When a message has been delivered, and the messengers 
returned to their own house, it is their duty (of one of the two in 
the lords, and of the bearer of the message in the commons), to 
•make report of their proceedings, and of the answer of the house, to 
which the message was sent.-^ K the messengers are unable to de- 
liver their message, in consequence of the house to which they 
are sent being then adjourned, they should report that fact, on 
returning to their own house, and again proceed when the other 
house is next sitting/' If prevented from delivering their message, 
from any other cause, as, for example, by being refused admittance, 
the messengers should report the fact, for the information and con- 
sideration of the house. When a message admits or requires no 
answer, — as, for example, w^hen biUs passed in one house are sent 
to the other to be there proceeded upon, — it does not appear to be 
necessary for the messengers to make any report on their return. 

817. A message from one house to the other cannot be received 
by the house to which it is sent ; '' nor can an answer to a message 
be received by the house by which it is sent, unless a quorum is 
present.^ When such a case occurs, the only course for the mes- 
sengers to pursue is to defer delivering their message, or making 
their report, until the requisite number is present.^ 

1 Hatsell, m. 19. 8 piirl. Reg. XXXV. 632; Cong. Globe, XI. 

2 Pari. Reg. XXXV. 631; HatseU, IV. 141, 253. 

note. J. of S. 28th Cong. 1st Sess. 402. The 

3 Hatsell, IV. 141, note. usher of the black rod, an officer of the lords, 

* Pari. Reg. XXXV. 630. a part of whose business it is to deliver mes- 

* Hansard (1), XVIII. 804, 817. sages from the sovereign to the commons, 
' Pari. Reg. XLIII. 55, 56; Comm. Jour, ■with a message from the king, or from lords' 

LI. 7, 10. commissionei's authorized by him, for the at- 

' Pari. Reg. LVII. 593; Comm. Jour. LV. tendance of the house of commons in the 

785; Hatsell, II. 339, note. lords, must be admitted whether a qv.orum la 

28 



326 



LEGISLATIVE ASSEMBLIES. 



[Paet V 



818. When there is any mistake in a message, either as sent or 
delivered, it appears to be the custom for the house by which it is 
sent to correct the mistake by a subsequent message, and for the 
house to which it is sent, to discharge any order predicated on such 
erroneous message.^ If the mistake is perceived before the mes- 
sengers have returned, they may be called in to correct it, if it has 
occurred in the delivery ; but in this case, if the mistake is a merely 
verbal one, which cannot possibly give rise to any error or ixdsunder- 
standing, as, for example, where messengers from the lords inform- 
ed the commons that the house of commons had sent them a biQ, 
etc., it is most proper to overlook the error, and to consider the mes- 
sage as expressing what was evidently intended by it.^ If the mis- 
take is one T\"hich belongs to the message as sent, and not as 
dehvered, or if it is equivocal in its terms, the messengers may 
be called in and receive for answer, that the house deshes of the 
other house a correction or explanation ; as, for example, where the ■ 
commons had sent several messages to the lords on the same day, 
and the lords sent them a message desiring a present conference 
" upon the subject-matter of their message," to the lords, the mes- 
sengers were called in, and acquainted by the speaker, " that the 
commons, having sent several messages this day to the lords, do 
deshe to knoAv from their lordships, upon the subject-matter of 
which message, their lordships desire a present conference." The 
same messengers returned immediately with a message specifying 



present or not, and the members present must 
thereupon immediately attend the king or the 
commissioners in the house of lords. The 
opposition between this rule, and that stated 
in the test, led, on one occasion, to a curious 
state of things in the liouse of commons. 
That house had passed certain money hiUs, 
and had sent them to the house of lords, where 
they had passed without amendment; the 
lords then sent them to the bouse of commons, 
with a message to inform the latter of their 
being so passed. The bills were placed upon 
the table of the commons ; but, as forty mem- 
bers were not present, the messengers could 
not be admitted with their message. In the 
mean time, the usher of the black rod came 
with a message from the lords' commissioners, 
directing the attendance of the commons in 
the house of lords, and being admitted and 
having delivered his message, the speaker, 
with the members present immediately went 
to the lords ; the speaker carrying with him 



the bills alluded to, upon a private intimation 
that they had passed the lords without amend- 
ment. The speaker then presented the bUls 
to the commissioners, from whom they re- 
ceived the royal assent. On the return of the 
commons, the speaker reported that the house 
had been at the lords, where the royal assent 
was given to certain bUls, among which were 
the money bills above mentioned. Forty 
members being then present, and the lords' 
messengers in attendance, they were called 
in, and delivered their message to acquaint 
the commons with the agreement of the 
lords to the same biUs, to which the royal as- 
sent had just been reported to be given. 
The speaker thereupon explained what he 
had done, which was approved of by the 
house, and a special entry to that effect, at 
his suggestion, made on the journal. Comm. 
Jour. LV. 7S3, 783. 

1 HatseU, HL 23, 26. 

- Grey, lY. 39, 41. 



Chap. L] communications by confekence. 327 

more particularly the subject-matter upon which the conference 
was desired.^ 

819. In this country, messages from one branch of a legislative 
body to the other are commonly sent, on ordinary occasions of 
business, by the clerk or secretary of each branch, respectively, or 
some subordinate officer of his department ; ^ but on extraordinary 
occasions, or in reference to matters of importance, they may be, 
and usually are, sent by members ; and no reason is ever given or 
demanded for sending by unusual messengers. The names oi 
messengers are always to be entered on the journals. 



Section II. Communications by Conference. 

820. The second mode of communication between the two 
houses is by means of a conference ; in which, as its name imports, 
the communication takes place in the presence of both houses, 
either actually, or by deputations of their members. This is a more 
formal and ceremonious mode than that already described. It is 
conducted by members appointed for the purpose ; is held in a 
room distinct from those occupied by the two houses when sitting ; 
and so entirely are both supposed to be engaged in the proceeding, 
while the managers are at the conference, that the usual and ordi- 
nary business of both houses is in the mean time suspended. When 
it is the purpose of a communication between the two houses to 
explain opinions, or to reconcile differences, or to induce one of the 
houses to waive a proceeding, or form of proceeding, which the 
other deems unparliamentary, a conference is supposed to be more 
respectful and better calculated to effect the object in vie-vv than a 
message. 

821. It would not be easy to express, by any general rule, the 
diflerent occasions on which a conference or a message would be 
the most appropriate and effectual form of communication. The 
purposes for w^hich messages are commonly employed have already 
been alluded to. The most usvial occasions, upon which it is com- 
petent for either house, according to the practice of parliament, to 
demand a conference vidth the other, may be arranged under the 

1 Comm. Jour. XXXII. 92; Cavendish's 17th Cong. 1st Sess. 139; Same, I7th Cong. 
Debates, I. 82, 83. 2d Sess. 7 ; J. of S. 17th Cong. 2d Sess. 233 ; J. 

2 J, of S, I. 465 ; Same, V. 403 ; J, of H. of H. 30th Cong. 1st Sess. 596. 



328 LEGISLATIVE ASSEMBLIES. [PaRT V 

following heads, namely: 1, to communicate resolutions or 
addresses, to which the concurrence of the other house is desired ; 
2, concerning the privileges of the two houses with relation to one 
another ; 3, in relation to the course of proceedings of one, in 
which the other is concerned ; 4, to require or to communicate 
statements of facts, on which bills have passed or other proceedings 
have taken place ; and, 5, to offer reasons for disagreeing to, or 
insisting on, amendments made by one house to bills, resolutions, 
or addresses, passed or agreed upon in the other.^ This classifica- 
tion, though it may not perhaps, be found to embrace all the 
occasions, upon ^which conferences have taken place, -will neverthe- 
less serve to give some general idea of the various matters, in 
reference to wliich this form of communication may be adopted. 

822. It is not always a matter of indifference, even when there 
may be a fit occasion for a conference, at what time, or by which 
house, the conference is requested ; for, as it is the duty of the two 
houses, on all occasions, to maintain a good understanding and 
cooperation with one another, and to allow each other to proceed, 
.n the discharge of their respective duties, with perfect freedom and 
independence, it "would not be proper for one, by means of a con- 
ference, to interfere "with, and anticipate, or endeavor to influence, 
the proceedings of the other, until that other has first acted upon the 
subject in question. Thus, while a bill, which has passed in one 
house, and been sent to the other, is there pending and under con- 
sideration, it is irregular for the former to take any notice of the 
proceedings in the latter, and to demand a conference thereon. 
This rule, which lies at the foundation of the freedom and inde- 
pendence of the two houses, as regards one another, was estab- 
lished at a very early period of parhamentary history ; ^ and, though 
originally restricted in its terms to bills, the principle of it is so 
obviously convenient and proper, that, for a long course of years, it 
has been extended and apphed as a general rule to resolutions and 
all other matters, which have been communicated from the one house 



1 This is substantially the classification sage to the commons requesting that certain 

adopted by Mr. May, (p. 323); except that committees appointed to have conference with 

his fifth head is included under the fourth, the lords on another subject, " may also have 

where, on examining the journal to which he commission to show unto their lordships the 

refers, it will be found to belong. reasons, which did move this house to deal so 

"In the 18 Elizabeth (1575), Hansard (2), hardly in the bill, which being signed by her 

IV. 518, 519, the lords passed a bill for the majesty, passed their lordships, for the resti- 

restitution in blood of Lord Sturton, and tution in blood of the lord Sturton; being a 

sent it to the commons, where, it being pro- nobleman, and seeking but the same course 

posed to amend the bill, the lords sent a mes- and form of restitution, which other noble- 



Chap. I.J communications by conference. 329 

to the other, and are there pending and under consideration. For 
example, if the commons, at a conference, communicate a resolu- 
tion to the lords, and request the concurrence of the latter, they 
must wait until some answer is returned, before demanding another 
conference on the same subject. When the lords are prepared with 
their answer, it is for them to demand a conference with the com- 
mons, for the purpose of communicating it to them.^ 

823. The proceedings preliminary to a conference, in the house 
by which it is requested, usually commence by their coming to a 
resolution, that a conference be demanded of the -other, in reference 
to a certain subject. The next step is the appointment of a com- 
mittee to consider of and draw up reasons, etc., or what may be 
proper to be ofi^red at the conference. When this committee has 
reported, and Ihe house has thereupon agreed upon the reasons, or 
whatever else is to be offered at the conference, a message is then 
sent to the other house, in the ordinary manner, requesting a con- 
ference on the subject or matter in question.^ When the occasion 
of conference arises in the regular course of proceeding, one or 
more of these previous steps is omitted ; as, for example, when the 
purpose of the conference is to communicate reasons for disagree- 
ing to amendments to a bill, the first step, namely, a resolution for 
a conference, becomes unnecessary, because a conference is the 
regular course of proceeding, and the first step is therefore the 
appointment of a committee to prepare the reasons ; ^ so, when it 
is the object of a conference to communicate resolutions merely,^ or 
to inform the other which of their amendments are agreed to and 
which are not, without reasons ; ^ the conference may at once be 



men in like cases have done, and had hereto- and arg\iments," it was answered, " that by 
fore; which message, being opened unto the the resolution of this house, according to the 
house was not well liked of, but thought ancient liberties and privileges of this house, 
perilous and prejudicial to the liberties of this conference is to be required by that court, 
house; whereupon, it was resolved by this which at the time of the conference demanded, 
house, that no such reason shall be i-endered, shall be possessed of the bill, and not of [by] 
nor any of this house to be appointed unto any other court: And, further, that this house, 
any such commission." The next day, the being now possessed of the bill, and minding 
lords sent another message to the commons, to add some amendments to the said bill, will 
"to desire conference with such of this house, (if they see cause, and think meet,) pray con- 
as this house shall appoint, touching confer- ference therein with their lordships them- 
ence with their lordships for the bill of the selves; and else not." — Comm. Jour. I. 114. 
lord Sturton ; which their lordships do hear i May, 323. 
hath had offer of provisos, or some other - Comm. Jour. XVIII. 376, 377. 
things, to the stay of the proceedings of the * Comm. Jour. XVIII. 290. 
gaid bill; whereupon, after sundry motions * Comm. Jour. XXI. 932. 



^ Comm. Jour. X. 510. 



28 



330 LEGISLATIVE ASSEilBLIES. [PaUT V 

requested, "^dthout either of the above-named preliminary steps 
being taken, because such is the regular course of proceeding, and 
wh?tt is to be presented at the conference is abeady prepared. 

824. The message requesting a conference should clearly describe 
the subject-matter upon which it is desired, not only as a matter of 
civility, but m order to enable the other house to judge of the im- 
portance of the subject, as well as of the fitness of the occasion, or 
whether it may not relate to a matter, upon which, consistently 
with the preservation of their privileges, they cannot consent even 
to meet and confer. If this is not done, the house to which the 
application is made may decline the request, on the ground of such 
omission. Thus, in 1641, the lords having sent to the commons to 
desire a conference, without expressing the subject of it at all, the 
conference was decHned, on the ground, that a message for a con- 
ference, "without any expression of the subject or matter of that 
conference, is contrary to the course of either house." ^ In 1678, a 
similar request was declined by the commons, on the ground, that 
it was " not agreeable to the usage and proceedings of parliament, 
for either house to send for a conference, -^dthout expressing the 
subject-matter of that conference." ^ The like informahty having 
again occurred in 1795, the entries on the journals in the foregoing 
cases were read, and the commons thereupon declined the confer- 
ence, for the reasons given in the entry of 1678.-'^ In all these cases, 
messages were immediately afterwards sent by the lords, expressing 
the subject-matter of the proposed conference. But, in another 
case, where a conference was requested by the lords, " touching 
matters of great importance," '^ the commons agi-eed to the confer- 
ence ; but " it was observed, and so declared, that this message was 
so general, that the house was not bound to make answer there- 
unto ; and, though in this strait of time, they are content to give 
answer to this ; but have ordered not to be bound by this precedent 
for the future." ^ 

825. It does not appear to be necessaiy, however, to state in the 
message the precise subject upon which a conference is desired, or, 
if stated, to do it with minute distinctness ; it is sufficient if the 
message so far describes the subject-matter, in general terms, as to 

1 Comm. Jour. II. 232. delivered. The order for the message as en- 

2 Coinm. Jour. IX. 574. tered in the Lords' Journal, expressefi the sub- 

3 Comm. Jour. LI. 5. ject of it with sufficient distinctness. 
* In this case, there appears to be a dis- ^ Comm. Jom'. 11. 581. 

•repancy between the message as sent and as 



Chap. L] communications by conference. 331 

show that there is a parliamentary ground for the proceeding. 
Thus, for example, the subject of a proposed conference may be 
described as a matter " highly concerning the honor of his majesty 
and his government," or " in which the honor and interest of the 
public are essentially concerned," or " highly important to the privi- 
leges of both houses of parliament." ^ The following examples will 
serve to show in what manner, and how far, it is customary to 
describe the subject of a conference in the message by which it is 
requested. The house of commons having agreed upon an addi-ess 
for the removal of Sir Jonah Barrington from the office of judge of 
the admiralty in Ireland, and having ordered the same to be com- 
municated to the lords, and their concurrence therein desired, at a 
conference, ordered a message to be sent to the lords, to desire a 
conference "upon a matter of high importance and concern, respect- 
ing the due administration of justice." ^ The commons having 
agreed to certain resolutions relating to the afFau's and proceedings 
of the East India Company, ordered them to be communicated to 
the lords at a conference, upon " a subject of the highest impor- 
tance to the prosperity of the British possessions in India." ^ Reso- 
lutions of the commons, relating to the abolition of slavery in the 
West Indies, were described in the message, desiring a conference 
for the purpose of communicating them to the lords, as " a matter 
deeply connected wiih. the interests of his majesty's West India 
Colonies." * The commons, having agreed upon an address to the 
king, to inform him of their determination to maintain the union 
with Ireland, and having ordered the same to be communicated 
to the lords for their concurrence, sent a message to the lords for 
that purpose, requesting a conference " upon a matter essential to 
the stability of the empire, and to the peace, security, and happiness 
of all classes of his majesty's subjects."^ In these cases, the subject- 
matter of the conference is not so stated, as to give any distinct 
notion of what it was, but is merely described so as to show that 
the request might with propriety be granted. When a second or 
subseqrfent conference is requested, the subject of it is described in 
the message as that of the last conference. 

826. Whenever a conference is requested by either house, it is 
the sole privilege of the lords to name the time and place, at which 
it is to be held. If the commons find the time or place so appointed 

1 Hatsell, IV. 51, 62. * Comm. Jouv. LXXXI. 488. 

2 Comm. Jour. LXXXV. 473. * Comm. Jour. LXXXIV. 232. 
s Comm. Jour. LXXXVIU. 488. 



332 LEGISLATIVE ASSEMBLIES. [PaET V 

inconvenient, as, for example, if they have themselves appointed 
the same time for other business, which cannot conveniently be 
postponed,^ or, if they consider the place a dangerous one,^ they 
may disagree to holding the conference at the time or place ap- 
pointed, at the same time informing the lords of the reasons which 
have induced them to decline the request ; and it then rests with 
the lords, if they think proper, to change the time or place. So, 
after the lords have fixed the time and place, they are at Hberty to 
change either or both.^ But, in no case, will the lords permit the 
commons, nor indeed have the commons ever claimed the privilege; 
to name the time or place of meeting.* 

827. When a message is sent from the one house to the other 
for a conference, it is received, treated, and acted upon, in the same 
manner as other messages ; and, in order to preserve harmony and 
a good correspondence between the two houses, it should be an- 
swered, as soon as the convenience of the house vnR admit.^ The 
house, of which the conference is requested, may simply agi*ee, and 
it would be unparliamentary to refuse a conference which was 
demanded on parliamentary grounds ; or it may disagi-ee, in 
which case, the reasons for disagreeing should be stated ; '^ or, if it 
is the house of commons, of which the conference is requested, it 
may agree to the conference, but disagree as to the time or place," 
in which case, the reasons should also be stated, and the lords wiU 
thereupon, if they see fit, appoint some other time or place.^ But 
it does not appear to be according to parhamentar}^ usage, nor would 
it consist with convenience, to agree, on condition,^ or vvdth some 
amendment or modification, as to the subject-matter of the confer- 
ence ; such an agreement may be considered as a refusal of confer- 
ence, and treated as such. Thus, where, in answer to a request of 
the commons for a conference, the lords informed them by message, 
that they agreed to the conference, " always provided, that nothing 
be offered at the conference, that may anyvi^ays concern their lord- 
ships' judicature," the commons resolved, " that, by the lords' an- 
swer, there is no grant of a conference upon the matter, as it -was 
desired by this house," and also that a conference be desired with 



1 Hatsell, lY. 17, 18, note; Hans. Pari. Hist. ^ There are instances of messages for a con- 
I. 1068 ; Comm. Jour. I. 832. ference remaining unanswered altogether. 

2 Coran:i. Jour. I. 812. « Comm. Jour. I. 114. 

* Comm. Jour. I. 717. ^ Comm. Jour. I. 20C, 812. 

* Hatsell, IV. 50. s Comm. Jour. I. 200, 812. 

" Hargi-ave's Preface, etc., 137. 



Chap. L] communications by conference. 333 

the lords on the subject of that answer." ^ When a proposition for 
a conference has been considered, the answer is to be retui'ned by a 
message ; if agreed to at once, the answer may be returned by the 
same messengers ; if disagreed to at once, either wholly, or only as 
to time or place, the most regular course seems to be for the house 
disagreeing to return an answer by messengers of its own ; ^ if 
the answer is not resolved upon immediately, it must be returned 
in that manner, whatever it may be. 

828. A conference is conducted usually, and, in modern times, 
exclusively, by members appointed for the purpose by each of the 
two houses, who are denominated managers, and who represent 
and act for their respective houses. Instances occur, in the reigns 
of James I. and Charles I., of conferences between the two houses, 
conducted by all the members of both, in which the whole house of 
commons attended, either with the speaker as a house, or as a 
committee without the speaker.'^ When a conference takes place 
in this manner, all the members are of course managers, and certain 
members are appointed by their respective houses as reporters of 
the conference. When a conference is to be conducted by man- 
agers, it is an ancient and understood rule, that the number on the 
part of the commons is to be double that on the part of the lords.*^ 
But it is not the modern practice, when conferences are proposed 
or agreed to, to make any mention of this rule, or of the number of 
managers on either side.^ The number employed is not always 
the same. On the part of the lords, it does not appear to be less 
than eight ; in the commons, it must, of course, be not less than 
sixteen ; and in point of fact, it is frequently greater, on both sides, 
than those numbers respectively. 

829. The managers of a conference are appointed in the same 
manner as the members of select committees ; by members calling 
out indiscriminately the names of other members, which are taken 
down by the clerk as he hears them ; or by all the names being 
moved together on a Kst by some member ; or by the managers of 
a former conference being moved together under that appellation ; ^ 
or by the names being suggested by the speaker. But, in all these 
cases, if it is insisted on, the name of each member must be moved 
separately, and a question put upon his being one of the managers.'^ 

830. The managers for the house which requests conference are 

1 Comm. Jour. IX. 346. s May, 254; Hatsell, IV. 17, note. 

2 Comm. Jour. I. 156, 200, 492, 498, 813. 6 Hansard (3), XXXV. 1135. 
s Comm. Jour. I. 576, 631, 640, 812. i Hatsell, IV. 22, note. 

* Comm. Jour. I. 154. 



834 LEGISLATIVE ASSEMBLIES. [PaRT V 

usually the members of the committee, to whom it was referred to 
draw up reasons, or to prepare what might be proper to offer at the 
conference, A\dth whom others are usually joined. On the part of 
the house, of whom the conference is requested, the managers are 
usually selected from those members who have taken an active 
part in the discussion of the matter, whatever it may be, v^diich has 
given occasion to the conference, if they happen to be present.^ In 
the absence of members v^^ho have participated in the proceeding, 
or where the matter has newly arisen, the managers can only be 
selected in the same manner, and upon the same principles, that 
the members of select committees are appointed. K there is a 
difference of opinion in the house, with reference to the proposition, 
which is the subject of a conference, it would seem to be improper 
to appohit any one a manager, who is against the proceeding.- 

831. The duty of the managers, on the part of the house pro- 
posmg the conference, is confined to the delivery to the managers 
for the other, of the communication, whatever it may be, which it is 
the purpose ©f the communication to make ; and the duty of the 
managers for the other house is merely to receive such communica- 
tion. They are not at Kberty to speak, either on the one side to 
enforce, or on the other to make objections to, the communication. 
One of the managers for the house proposing the conference, (the 
member first named,^ it is presumed, unless otherwise agreed 
among themselves,) first stating the occasion of it in his own 
words,*^ then reads the communication, and delivers the paper on 
which it is written to one of the managers for the other house, by 
whom it is received. When the conference is over, the managers 
return to their respective houses, and one of them reports their pro- 
ceedings.-^ 

832. At the time appointed for the conference, the course of 
proceedings is somewhat difierent in the two houses. In the com- 

1 Jiay 325. The piinciple thus estabhshed, though 

2 The several parts to be assigned among originally laid down with regard to a free 
♦Jie managers at a free conference being under conference, is equally applicable in regard to 
consideration in the house- of commons: others; because, the managers, who are ap- 

" Mr. Hedley being assigned with the rest pointed to conduct the first and second con- 
fer the point of assurance, excuseth himself, ferences, are usually appointed for the free 
in that he was directly against the matter conferences, if any, which take place after- 
itself in opinion." wards. On one occasion, it appears, that the 

" Conceived for a rule, that no man was to lord chancellor was one of the managers for 

be employed that had declared himself against the lords. Coram. Jour. IX. 538. 

it." 3 Pari. Reg. LHI. 108. 

" Hereupon a question made, whether ilr. * Mr. Onslow. HatseU, IV. 28, note. 

Hedley were to be employed : Resolved, not ^ May, 325. 
to be employed." Comm. Jour. I. 350. 



Chap. L] communications by conference. 335 

mons, the speaker informing the house, if necessary, that the time 
for holding the conference has arrived, the managers are appointed, 
then- names are called over by the clerk, and, without any formal 
adjournment of the house, but only a tacit suspension of the busi- 
ness in hand, they go to the place at which the conference is to be 
held, and their presence there is then made known to the lords by 
the usher of the latter or his deputy .^ If the managers for the lords 
thereupon attend, the conference takes place. If the managers for 
the lords do not attend, the managers for the commons wait as 
long as they think proper, and then return to their house, and re- 
port that the conference has not been held, together with the reason 
of the failure, if within their knowledge. Thus, on one occasion, 
the managers for the commons reported, " that they had been at 
the place appointed for the conference, and understood that the 
house was not then sat ; ^ and, on another, " that they had been at 
the place of conference, and had there waited a considerable time ; 
but that the lords not coming, the managers thought it their duty to 
stay no longer." '^ 

833. In the lords, when the time appointed for the conference 
arrives, nothing is done until the house is informed by the usher or 
his deputy, that the commons are in attendance at the place of 
conference. Managers are then appointed, — their names called 
over, — the house is, on motion, adjourned during pleasure, — and 
the managers go to the conference. While the managers are at 
the conference, the business of each house is entirely suspended.'^ 

834. When the conference is concluded, the managers on both 
sides return to then* respective houses, which are immediately re- 
sumed, and the managers make their report. The report is first 
disposed of, either finally or for the time, and then the business 
which was interrupted by the conference is taken up and proceeded 
with at the point where it was interrupted. As the lords do not 
attend at all, unless the commons first attend, there is no occasion 
for that house to be informed that the conference has fallen through. 
It falls through, as a matter of course, unless the lords are notified 
of the attendance of the commons, at the time and place ap- 
pointed. 

835. When a conference falls through, by reason of the neg- 
lect of one of the houses to attend, if the omission is occasioned by 
5ome accident, the cauae of it is signified to the other by a message 

1 Pari. Keg. LXIH. 737. » Coram. Jour. XXUI. 525. 

« Comm. Jour. 838. * May, 323. 



336 LEGISLATIVE ASSEMBLIES. [PaET V 

by way ot apology. Thus, in the first of the cases mentioned in 
the preceding paragraph, the lords very soon afterwards sent a 
message to acquaint the commons " that the speaker of the house 
of lords living two miles out of town, and the badness of the roads, 
at this present, was the only occasion of their lordships not commg 
to the conference at the time appointed." ^ The commons, — who, 
on receiving the report of their managers, had resolved, " that a 
conference be desired with the lords upon the method of proceed- 
ing betAA^een the two houses," and had appointed a committee to 
consider of and prepare reasons to be offered at the said conference, 
— on receiving the apology above recited, w^aived aU further pro- 
ceedings with reference to the u-regularity, and the next day request- 
ed a conference on the subject-matter of the original conference.^ 
In the other case mentioned above, the lords on the next day in- 
formed the commons by message, that they were prevented " by 
extraordinary business " from meeting them the day before, and 
that they had appointed another time for the conference. The 
commons thereupon resolved to agree to the conference as thus 
appointed.^ In another case, where the neglect to attend was on 
the part of the commons, they sent a message to the lords to inform 
them that the failure to attend was in consequence of " extraordi- 
nary business," and desired the lords to appoint some other time ; 
to which the lords agreed, and appointed a time accordingly.'^ Li 
some one of these modes, proceedings "which have been interrupted 
by the falling through of a conference may be renewed. 

836. As has aheady been observed, the duty of the managers, on 
the one side, is to make, and on the other to receive, the communi- 
cation, which is the subject of the conference, and, of both, on 
returning to their respective houses, to make a report of their pro- 
ceedings. The report of the managers for the house, at whose 
request the conference has taken place, is, in substance, that they 
have met the managers for the other house, and have delivered 
them the communication, with which they were charged. The 
report of the managers for the other house is, in substance, that 
they have met the managers for the former, and that the purpose 
of the conference was, to make a certam communication which they 
have received and which they then proceed to lay before the house. 
This communication, or rather the report of the managers embrac 
ing it, is then to be considered and disposed of by the house tc 

1 Comm. Jour. X. 839. » Comm. Jour. XXIO. 525, 526. 

2 Comm. Jour. X. 840. * Comm. Jour. XVIII. 390. 



Chap. I.] communications by conference. 337 

which ii is sent ; which may take place immediately, or be post- 
poned to a futm*e time. 

837. When it has been definitely acted upon, if the purpose of 
the communication is accomplished, — that is, if the house to 
which it is made at once agrees with the other, — it then only 
remains for the former to signify the result to the latter, which is 
sometimes done by a message, and sometimes at a second confer- 
ence. If the object of the communication is not effected, but the 
house to which it is made reaffirms the opinion or act which is 
objected to, the course of parliamentary proceedings requires, that 
it should notify the other of its disagreement, with the reasons upon 
which it is founded ; and this must always be done, by means of a 
second conference, requested by the house disagreeing, and agreed 
upon and held in the manner already described; at which the 
duties of the managers for the two houses are reversed, those who 
before made a communication now receiving one, and those who 
before received now making one. 

838. The result of this second conference, being considered and 
acted upon, as above mentioned, may be to satisfy the house which 
first made the communication, that the other house is in the right; 
in which case, the agreement of the latter may be signified by mes- 
sage, or at a conference. If the two houses still remain at difference 
with regard to the matter in question, the one which first moved in 
it may either allow it to rest where it is, or may make a further 
attempt to induce an agreement, on the part of the other. If the 
latter course is deemed the most proper, the only mode of effecting 
it is by means of what is called a free conference, which the house 
first requesting a conference may then request of the other upon 
the same subject-matter. 

839. A free conference ^ differs materially from the ordinary con- 
ference already described. In the first place, the duties of the 
managers at the latter are confined to the making and receiving a 
communication, which has previously been agreed upon and sanc- 
tioned by the house at whose request the conference is held. Li a 
free conference, they are at liberty, and it is their duty, to urge their 
own arguments, to offer and combat objections, and, in short, to 
attempt, by personal persuasion and argument, to effect an agree- 
ment between the two houses.^ 

840. It is competent for the two houses respectively, however, 

* In the indexes to the lords' journals, con- - May, 326. 
fereaces are called bare to distinguish them 
froa\ free conferences. 

^ 29 



338 LEGISLATIVE ASSEMBLIES. [PaRT V 

being now by means of the tvi^o preceding conferences in possession 
of each other's views in regard to the matter in controversy, to 
arrange beforehand the general com"se of proceeding, and to dis- 
tribute amongst their respective managers the several heads and 
topics, which they are to present and insist upon in their argu- 
ments ; w^hich is usually done upon the report of the managers 
themselves, previously appointed a committee for the purpose ; ^ 
or the managers may be allowed to make such arrangement and 
distribution among themselves ; but, in either case, the arguments 
used, and the mode of handling the several topics agreed upon, 
must be suggested by the managers themselves. 

841. The only rules, relating to the manner in which the discus- 
sions at a free conference are to be conducted, seem to be the same 
by which a debate in either house on the same subject-matter would 
be conducted, namely : — 1. That no personalities, either towards the 
managers on the other side, or the house which they represent, are 
to be indulged in ; and, 2. That no irrelevant topic, that is, one not 
embraced within the subject-matter of the conference, as agreed 
upon, is to be introduced. K either of these rules is infringed, by 
the managers or any of them, on the one side, there is no other 
remedy but for the managers on the other to object to any further 
proceeding, — stating at the same time the reason of their objec- 
tion, — and then to withdraw from the conference, and report the 
whole matter to the house of w^hich they are members ; which can 
then take such order in the premises as it may think proper. 

842. The following case will serve to illustrate the first of the 
foregoing rules. In the year 1701, a conference being held with 
reference to the proceedings against Lord Somers, Lord Haversham, 
one of the managers for the lords, making use of certain expres- 
sions which gave offence to the managers for the commons, the 
latter withdrew from the conference, returning to their house, and 
one of them reported "what happened at the conference in a 
speech of Lord Haversham, upon which the managers thought fit 
to withdraw from the conference, to the end they might acquaint 
the house therewith." The managers were thereupon directed to 
" withdraw into the speaker's chamber and collect the matter of the 
conference, and what was said by the lord Haversham, and report 
the same to the house." The report of the managers being made, 
the house thereupon resolved, that the expressions made use of by 
Lord Haversham, at the conference, were false and scandalous, — 

1 Comm. Jour. L 340, 349, 350. 



Chap. L] communications by confekence. 339 

highly reflecting on the honor and justice of the commons, — and 
tending to a breach of the good correspondence between the two 
houses." They also resolved that Lord Haversham be charged, for 
the words so spoken, before the lords, and that the lords be desired 
to proceed in justice against him therefor. These resolutions were 
communicated to the lords, who, thereupon, appointed a committee 
" to state the matter of the free conference, and to inspect prece- 
dents of M' hat has happened of a like nature." In the mean time, 
in order that the public business might receive no interruption, they 
proposed a renewal of the free conference immediately. But to 
this the commons would not agree. They answered, that they 
were desirous to preserve a good correspondence with- the lords, 
and to expedite the business of parliament ; but it would not con- 
sist with their honor, to renew the conference, until they had 
received reparation for the indignity offered to them by Lord 
Haversham.^ 

843. The rule, as to relevancy, was the ground upon which the 
free conference, with reference to the matter of the Aylesbury men, 
in March, 1704, was broken up, and the proceedings brought to a 
close. The managers for the commons, on their return to the house, 
reported, "that they had met the lords at the free conference, 
which had lasted very long ; and that when the managers for the 
commons took notice of some invasions of the house of lords, in 
point of judicature, particularly as to appeals, the lords broke up 
the conference." The managers were thereupon directed " to draw 
up what had passed at the conference, and lay the same before the 
house with all convenient speed ; " which being done accordingly, 
the report was made and entered at length on the journal. The 
house thereupon resolved, that their proceedings, in relation to the 
Aylesbury men, were in maintenance of the rights and privileges 
of the commons of England, and directed the whole to be 
printed.^ 

844. The following order, agreed to by the house of commons, in 
1580, though it seems to refer, especially in the last clause, to some- 
thing in the forms of proceeding at conferences which is not now 
in use or to a free conference merely, embodies a principle which 
appears to be strictly applicable to the discussions, which take place 
at free conferences in modern times: — "It is ordered, that such 
persons as shall be appointed by this house, at any time, to have 
conference with the lords, shall and may use any reasons or persua- 

1 Coram. Jour. XIU. 629, 630, 631. 2 Comm. Jour. XIV. 566, 569, 575. 



340 LEGISLATIVE ASSEMBLIES. [PaET V. 

sions they shall think good in their discretions ; so as it tend to the 
maintenance of any thing done or passed this house, before such 
conference had, and not otherwise ; but that any such person shall 
not, in anywise, yield or assent, to [at] any such conferences to 
any new thing there propounded until this house be first made privy 
thereof and give such order." ^ 

845. A second important difference beir^^een a conference and a 
free conference relates to the report. The communication, which 
forms the subject of an ordinary conference, being previously agreed 
to by the house maldng it, is usually in a wnritten form, and is fm-- 
nished by the managers for that house to the managers for the 
other, by whom it is made use of in making their report ; but this 
paper is only to be regarded as a memorandum of w^hich the mana- 
gers are at liberty to avail themselves, in aid of their- memory, and 
not as an official document authenticated by the house, from which 
it emanates.2 Sometimes, however, it happens, that the manager 
making the communication relies entirely upon his memory; in 
which case, the managers for the other house must trust to their 
own recollection, aided by the notes they may have taken, if any ,3 
in order to make their report. In the case of a fr-ee conference, the 
communications w^hich take place are exclusively verbal, except as 
to the statement of the votes or proceedings of the house, at whose 
request it is held, w-hich are usually contained in a T^Tritten memo- 
randum, as at an ordinary conference; and, therefore, they must 
necessarily be dra-^^n up and reported from recollection, either alone, 
or assisted by the notes or memoranda of the managers. Hence 
it happens, in practice, that the discussions which take place at a 
free conference are not, in the fii'st instance, reported ; the mana- 
gers, on their return, merely making a general statement, that they 
have been at the conference, w^hich was very long, etc., and that 
they have left the bill, etc., with the managers for the other house. 
Where any votes or proceedings are communicated, they are of 
course reported. If subsequent proceedings should render it neces- 
sary or desirable, the comse is, for the house to direct the managers 
to make a full report forthwith, or in a convenient time, or by such 

1 Comm. Jour. I. 123. the lords,'") " deliTered all by word of moiath, 

2 Comm. Jour. I. 554, 555; Grev, IIL 240 ; -n-ithout the help of any paper; and, therefore, 
IX. 51. I must crave pardon, if what I report be not 

3 Mr. Powle, one of the managers for the exactly accordmg to his words ; though I hope 
commons at a conference, which was not a I shall not omit any material passage." Comm. 
free conference, began the report by saying, Jour. IX. 538. 

" he " (the lord chancellor, who managed " for 



Chap. L] communications by conference. 341 

a day. The report, w^hen made, is ordered to be entered on the 
journal.^ 

846. At a free conference, the discussion commences with tae 
managers on the part of the house at whose request it is held ; they 
are answered by the managers for the other house ; who are in turn 
replied to by the first ; and so on alternately until both parties have 
exhausted their arguments. The managers, on each side, unless 
the course of proceeding has been particularly marked out for them 
by the house, arrange among themselves their several parts, and the 
different branches of the subject, which each of them is to maintain 
or enforce. 

847. According to the regular course of proceeding, it is a rule, 
first, that a free conference ought not to take place until after two 
conferences, — that is, for the making of one communication on 
each side, — have been held, without bringing the two houses to an 
agreement ; and, secondly, that if any further conference is desired 
after two conferences, it must be a free conference. In 1667, the 
commons acquiesced in a third conference, protesting, at the same 
time, " that, according to the usual course of proceeding between 
the two houses, there was a mistake in the lords demanding a con- 
ference, and that it should have been a free conference." ^ A third 
rule is, that after one free conference has been held, no conference 
but a free one can afterwards be held, touching the same subject- 
matter; but as many free conferences may be held, as may be 
found necessary, consistently with other forms of proceeding.'^ 

848. These rules all relate to and suppose the same subject- 
matter. But if, in the course of proceedings by the way of confer- 
ence, any new matter, as, for example, some question of privilege, 
or of the order of proceeding, should arise, either from the conduct 
of any of the managers, or the proceedings of either house towards 
the other, or some alteration should take place in the matter ; in all 
these cases, a conference may be held with reference to such new 
matter, in precisely the same manner, as if no other subject were in 
dispute between the two houses. The matter thus incidentally 
arising may or may not be deemed of sufficient importance to take 
precedence of the principal subject ; if it should be, that matter is 
suspended, until the former is disposed of, when the latter may 
again be taken up, and proceeded in at the point where it was 
broken off.^ 

1 Comm. Jour. XIV. 180, 183, 566, 569, 575; 3 Hatsell, IV. 54. 

Lords' Jour. XVII. 264. * Hatsell, IV. 54; Comm. Jour. XVIIl, 608- 

2 Hatsell, IV. 54. 614. 

29* 



342 LEGISLATIVE ASSEMBLIES. [PaRT V. 

849. In the regular com-se of proceeding, therefore, there must, 
in the first place, be a conference, on the request of one of the two 
houses, acceded to by the other, at which the former makes a com- 
munication to the latter ; second, a conference, on the request of the 
house of whom the first conference was requested, for the purpose 
of giving reasons for disagreeing to, or for the purpose of otherwise 
answering, the communication which "u^as the subject of the first 
conference ; third, a free conference on the request of the house 
which fh'st requested a conference ; fourth, a free conference on the 
request of the other ; and, so on, alternate free conferences, if the 
t\\"o houses thuik proper, until they either agree, or come to a final 
and peremptory disagreement. 

850. At every successive conference, a new set of managers is 
appointed, usually however composed of the same members who 
were first appointed, with the addition of new ones, if occasion 
should require it. K the proceedings commence wdth the appoint- 
ment of managers, which is always the case in the house of whom 
conference is requested, the managers are generally afterwards 
appointed the committee to report the reasons, or prepare the com- 
munication to be presented at the second conference. If the pro- 
ceedings commence v\dth the appointment of a committee to pre- 
pare for the conference, which is usually the case in the house which 
first requests conference, the members of the committee are after- 
wards appointed the managers. Sometimes the proceedings com- 
mence in the house which requests the conference, with the ap- 
pointment of managers ; in which case, the same members are 
usually employed afterwards as managers, or as a committee to pre- 
pare, reasons, etc. 

851. In reference to the proceedhigs of the two houses, on the 
report of a conference, whether free or not, it is a general rule, 
which has aheady been alluded to, that the house, at whose re- 
quest the conference was held, takes no further steps whatever in 
the matter until something has been done by the other, upon whom 
alone it rests, to proceed or not, as it may think proper. It may, if 
it pleases, let the matter drop where it is. But if it thinks proper 
to take the report into consideration (which is the next step in the 
orderly course of proceeding), if it is the report of the first confer- 
ence, it may either accede to the proposition or request, which is 
the subject of the conference, or it may disagree to it. K it dis- 
agrees, its disagreement is communicated at the second conference. 
Upon the report of this, the house which first requested the con- 
ference may then proceed or not, as it pleases, or may let the mat- 



Chap. L] communications by conference. 343 

ter drop. If it proceeds with the report, three different- courses are 
open, namely : 1. To yield the point in dispute ; 2. To reaffirm its 
proceedings in such a manner, that, upon further conference or con- 
sideration of the matter, it may be at liberty, if it thinks proper, to 
yield the point ; 3. To reaffirm its proceedings in such a manner, as 
not to be at liberty to retract, in which latter case, there can be no 
agreement between the two houses unless the other should think 
proper to yield. In the first case, the house agrees ; in the second, 
it insists ; in the third, it adheres. The nature of the proceedings 
to be considered will indicate which of these forms should be 
adopted. 

852. If the house, of whom the conference has been demanded, 
sees fit, upon the report thereof, to yield the point in dispute, or to 
acquiesce in what is desired of it, (the particular form of proceed- 
ing will be noticed hereafter,) it is said to agree with the other. 
This agreement, which, of course, terminates the proceedings, may 
be signified by a message, in whatever stage it may happen to 
occur. 

853. If the house, of whom the conference has been demanded, 
does not see fit, upon considering the report of the conference, to 
agree with the other, or to yield the point in dispute, it may either 
allow the matter to rest where it is, or it may reaffirm its proceed- 
ings, according to the stage in which the matter then is, and to the 
state of its mind in reference to it. If it is on the report of the first 
conference, or the first free conference, it is proper merely to insist ; 
in which case, the house may, upon further proceedings, retract and 
agree. To adhere at either of these stages, is irregular, or, at least, 
contrary to the ordinary course of proceedings between the two 
houses ; it being usual to have two free conferences, or more, be- 
fore either house proceeds to adhere.^ 

854. If the stage of the proceedings is on the report of the sec- 
ond, or any subsequent free conference, the house, of whom the 
conference has been demanded, may, if it does not see fit to yield 
the point in dispute, insist as before, which it is still proper for it to 
do, in which case, it may afterwards agree ; or it may adhere, in 
which case, it cannot afterwards retract and agree. And as it is 
the parliamentary course, so it is no less agreeable to the nature of 
things, that there should be no adhering, on either side, until after 
two free conferences, at least : because, before that time neither of 
the two houses can be possessed of the reasons upon which the 

1 Hatsell, IV. 356. 



344 LEGISLATIVE ASSEMBLIES. [PaRT V. 

other proceeds ; nor can they "have had full opportunity to reply to 
the arguments of one another. To adhere sooner, therefore, is to 
exclude all possibility of offering expedients.^ 

855. When the house, whose business it is to take the next step 
in the course of the proceedings, subsequent to a conference, has 
considered and acted upon the report thereof, its proceedings are to 
be communicated to the other, if it yields and agrees, by a mes- 
sage ; if not, at a conference, ^vhich must be either a conference, or 
a free conference, according to the stage in which it takes place. 
If the vote of the house is to insist, then the other may agree, insist, 
or adhere, according to the rules above stated, and demand a con- 
ference, to communicate its proceedings, which, as it must be at 
least the third conference, must regularly be a free conference. 

856. Sometimes, instead of a single point of difference between 
the t^'o houses, there are several relating to or growing out of the 
same subject-matter; in wliich case, the tvvo houses may agree 
upon different points at different stages of the proceedings ; but, so 
long as any one point remains, they have not arrived at that full 
and perfect agreement, which it is the purpose of conferences to 
bring about. Conferences may consequently take place until noth- 
ing remains in dispute, or until one or the other of the houses sees 
fit to drop ah. further proceedings, or until both houses adhere to 
then' respective proceedings. A partial agreement is, of course, 
communicated at the conference, vi'hich is held upon the points 
still remaining in dispute. 

857. Strangers are no more entitled to be present at conferences, 
than at committees, or in either house ; - nor are any members en- 
titled to be present but those who are appointed to manage the 
conference ; ^ and, if the managers for the commons, on going to 
the conference room, (the lords do not go to the place of confer- 
ence until they are notified that the commons are there,) find stran- 
gers in the room, who are not entitled to be present, the coui'se is, 
for the managers to return and make report of that fact to the 
house ; and the other house being also informed of the fact by 
message, measures are then taken by both, to remove the obstruc- 
tion.'^ 

858. It seems hardly necessary to observe, that orders relating 
to conferences, as for example, for requesting a conference, for the 
appointment of a committee to prepare reasons, for the appoint- 

1 Hatfell, IV. 356. * Comra. Jour. XIV. 115, 116; Lords' Jour 

2 Comm. .Jour. I. 545. XVII. 

3 Comm. Jour. 1. 156, 717, 756 ; Same, X. 20. 



ClIAP. L] COMMUNICATIONS BY CONFERENCE. 345 

merit of managers, or for the reporting of the discussions at a free 
conference, may, hke all other orders, be discharged by the house , 
that, like other reports, the report of the managers may remain 
without further notice, or it may be presently considered, or it may 
be considered on a day assigned, or the consideration of it may be 
fixed for a day beyond the session ; and that in all these cases, 
whenever a debate ensues, it may be adjourned and resumed or 
not resumed, or adjourned to a day beyond the session. So, the 
report of the committee for drawing reasons or preparing matter 
for a conference, may be amended,^ and, for that purpose, recom- 
mitted to the same or a different committee.^ 

859. When the whole house attends as a house, with the speaker, 
it is the duty of the speaker, it is presumed, to report the confer- 
ence, in the same manner, as when the house attends as such in 
the lords, or in a body presents an address to the king ; when the 
whole house attends as a committee, without the speaker," or when 
a large number of members is appointed a committee to attend the 
conference, certain members are designated by name to be the 
reporters,'^ who may, either by direction of the house, or otherwise, 
arrange among themselves the duty of taking the notes and re- 
porting,'' and may either report by one of their number, or may 
each report upon some particular branch of the subject.^ 

860. The lords being adjourned during pleasure, and the busi- 
ness of the commons suspended, without any formal adjournment, 
in order that the conference may take place, it is incumbent on the 
officers of both (including the lord chancellor and speaker, if they 
do not go to the conference, either with their respective houses, or 
as managers), to remain in attendance, whilst the managers are at 
the conference, so, that, on their return, business may at once be 
resumed." 

861. In the year 1667, the painted chamber, a room near the 
chamber of the house of lords, was fitted up as a place of confer- 
ence for the two houses, and so used, until after the fire, in 1834, 
when it was fitted up as a temporary house of lords, and another 
room taken for a conference room.^ The new palace at West- 
minster, in which the two houses of parliament now sit, contains 
an apartment denominated the painted chamber, which is used for 
the holding of conferences. 

1 Comm. Jour. IX. 348. 6 Comm. Jour. I. 832. 

2 Comm. Jour. IX. 348. » Comm. Jour. I. 812, 813. 
8 Comm. Jour. I. 716. i Comm. Jour. I. 896. 

< Comm. Jour. I. 832, 896. » Hatsell, IV. 31, and note ; May, 327, n. 



346 LEGISLATIVE ASSEMBLIES. [PaRT V 

862. In regard to the ceremonies to be observed at conferences, 
which in the earher periods of parliamentary history were thought 
of sufficient consequence to be settled, according to the relative 
rank and dignity of the members of the two houses, the foUovs-ing 
seems all that is necessary to be stated. When the time fixed for 
holding a conference has arrived, the speaker in the house of com- 
m.ons, if necessary, caUs the attention of the house to the fact, — 
other business, if the house is engaged in any, is suspended, — 
managers, if not previously selected, are appointed, — their names 
are called over by the clerk, — and they leave their places in the 
house, and repair to the place where the conference is to be held. 
They enter the room uncovered, and remain uncovered and stand- 
ing, durmg the conference, unless it be some infirm person, who by 
connivance is allowed to sit, uncovered, in a corner out of sight.^ 

863. When the conamons are thus in attendance, the lords are 
immediately informed of it by their usher or his deputy. Business 
is thereupon suspended, — the managers are appointed and their 
names caUed over, — the house is adjourned dming pleasure, — and 
the managers go to the conference. When they enter the room, 
they have their hats on, until they come just -^Adthin the bar of the 
place of conference, vvhen they take them off, and "walk uncovered 
to the seats provided for them. They then seat themselves, and 
remain sitting and covered during the conference. The manager 
for the lords, vvho receives or delivers the paper, \\^hich contains 
the resolutions, votes, reasons, or other matter, which is to be 
delivered, stands up uncovered, while the paper is being transferred 
from one manager to the other; but, while reading it, he sits 
covered. When the conference is over, the lords managers rise 
firom then- seats, take off their hats, and walk uncovered from the 
place of conference. At a free conference, those of the lords who 
speak do so standing and uncovered.^ 

864. In the earher periods of parKamentary history, conferences 
between the tw^o houses "^^ere of frequent occurrence ; and, fr-om 
the time of James I. to that of George I. the journals contain a 
great number of precedents, furnishing abundant learning on this 
Subject. But, since the latter period, a number of different causes 
have contributed to render this mode of proceeding in a great 
degree unnecessary. The forms of proceeding bet^^een the two 
houses have become fixed and settled ; the jm-isdiction of the lords, 
as a judicial court of the last resort, is no longer regarded with 

1 Lords' Standing Orders, No. 37. ' 2 May, 327 ; Hatsell, IV. 28, note. 



Chap. L] communications by committees. 347 

jealousy, as conflicting with the privileges of the commons ; and, in 
consequence of the greater publicity of proceedings in boih houses 
by means of reporters and the press, aU the arguments and consid- 
erations, which, in one house, have led to the adoption of certain 
measures, are immediately known in the other, without coming 
through the formal channel of a free conference. There is, there- 
fore, at the present day, but very little occasion for conferences, 
except with reference to the amendments to bills between the two 
houses ; and only one case of this kind has given occasion to a 
free conference, within the present century ; which occurred in 
1836, when the amendments made by the lords to a bill for amend- 
ing the act for regulating municipal corporations, led to a free 
conference.! 

865. In this country, the occasions for conference are less likely 
to occur than in England, except in reference to disagreeing votes 
on bills and other similar matters, in which the two houses proceed, 
at. once, to a free conference, and which will be described hereafter. 
K a proper occasion should occur, for the holding of a conference, 
as above described, in any of our legislative assembUes, no good 
reason can be perceived, ^vhy it should not take place. The same 
ceremonies would be required, but, as the two branches are equal 
in point of dignity and rank, it would not be the exclusive privi- 
lege of either to appoint the time and place for the conference. 
The house proposing the conference would also propose the time 
and place for holding it, or they might be left to be agreed upon by 
the managers on each side. 



Section III. Communications by Committees. 

866. The two houses may also be brought into communication, 
by means of select committees ^ appointed by each house, with 
power to communicate to the other, in reference to the subject or 
business referred to them.'^ In 1794, the commons communicated 
to the lords certain papers which had been laid before them by the 

1 Mr. May remarks, that this was the only amendments to the bill for preventing occa- 

instance of a free conference since 1702; but sional conformity, the proceedings on which 

in this he appears to be mistaken. There was are well worthy of attention as regards form, 

a free conference on the matter of the Ayles- See May, 368. 

bury men in 1704; another March 20, 1717, ^ The subject of committees is explained in 

(Comm. Jom-. XVIII. 769); and a third, April the seventh part. 

23, 1740. The free conference, which he refers ^ May, 328, 329. 
to, in 1702, took place in reference to the 



348 LEGISLATIVE ASSEMBLIES. [PaET "V. 

king, in relation to corresponding societies, together ^vith a report 
thereon of their committee of secrecy ; ^ and these papers being 
referred in the house of lords to a select committee, the house gave 
the committee power to receive such communications as might be 
made to them, by the committee of secrecy appointed by the house 
of commons ; ^ to which the commons, on being informed of the 
order by message, rephed, that they had given power to their com- 
mittee of secrecy, to communicate, from time to time, A\dth the 
committee of secrecy appointed by the lords.^ Similar proceedings 
were adopted, upon the inquiry into the state of Ireland, in 1801, 
which was conducted by secret committees of the commons and 
lords communicating with each other.* 



CHAPTER SECOND. 

or co^l\iu2vt:cations between the two branches, oe either 

OF THEM AND THE EXECUTIVE. 

867. The sovereign, in addition to his character of chief execu- 
tive magistrate, is also one branch of the legislature ; and, in both 
capacities, there is frequent occasion for communication betw^een 
him and one or both the houses. The various constitutional forms 
in which these communications take place, on the one side, and on 
the other, will now be noticed: — I. Communications from the 
sovereign to the two houses, or either of them ; and, II. Commu- 
nications from one or both of the houses to the sovereign. 



Sectioj? I. Of Communtcatioxs from the Sovereign to the 
TWO Houses, or either of them. 

868. The sovereign communicates ■'Adth the t^v^o houses, either in 
their presence, which takes place when the king, being present in 
person or by commissioners, is attended by the two houses in the 
house of lords ; or by message, which is either written or verbal. 

1 Comm. Jour. XLIX. 613. ^ Comm. Jonr. XLIX. 620. 

* Lords' Jour. XL. 202. * Comm. Jour. LXVI. 287, 291. 



Chap. II.] communications with the executive. 349 

These several forms of communication, with the incidental pro- 
ceedings to which they give rise, will now be considered. 



I. Communications hy the Sovereign in Person, or hy Commissioners. 

869. The sovereign is always supposed, in a constitutional sense, 
to be present, in the high court of parhament, in the same manner 
that he is present in aU the other courts of the realm ; but as in the 
latter he can only exercise the functions of justice, through and by 
means of his judges, so in the former he can only take a part in 
the proceedings in those constitutional modes, by which the exer- 
cise of the parliamentary prerogatives of the crown is rendered 
consistent Avith the entire freedom and independence of each house 
of parliament, in all its debates and proceedings. The king may 
be present, in person, in the house of lords, at any time ; and may 
witness its dehberations and proceedings, but he can only par- 
ticipate in them, when he comes there for the purpose of exercising 
his constitutional functions, as the chief executive magistrate, or 
as one branch of the legislature. Charles II. and his immediate 
successors were accustomed to be present and witness the debates 
in the house of lords ; but, since the accession of George I., this 
practice, which might be abused to overawe and influence the pro- 
ceedings of that house, has been discontinued ; and, according to the 
subsequent practice, the king is never personally present in parlia- 
ment, except on its opening and prorogation, and occasionally 
during a session for the purpose of giving the royal assent to 
biUs.i . 

870. When the king meets parliament in person, for either of the 
above-mentioned purposes, he proceeds in state to the house of 
lords, where, being seated on the throne, and attended by his officers 
of state (all the lords being in their robes and standing while the 
king is present), he commands the gentleman usher of the black rod, 
through the lord high chamberlain, to let the commons know, that 
it is his majesty's pleasure that they attend him immediately in the 
house of lords. The usher of the black rod goes at once to the 
door of the house of commons, which he strikes with his rod ; and, 
on being admitted (it is not competent for the house to refuse him 
admittance) he advances up the middle of the house towards the 
table, making three obeisances to the chair, and says : — " Mr. 
Speaker, the king commands this honorable house to attend his 

1 May, 331. 

30 



350 LEGISLATIVE ASSEMBLIES. [PaRT V. 

majesty immediately in the house of peers." He then T\dthdraws, 
still making obeisances, and without turning his back upon the 
house, untn he has reached the bar. The speaker and the house 
immediately go up to the bar of the house of lords ; upon which, 
the royal communication, whatever it may be, is then made. 

871. When the king is not personally present, the communica- 
tion is made by the lords commissioners appointed for the pm-pose. 
The gentleman usher of the black rod is sent, in the same manner, , 
to the commons, and acquaints the speaker that the lords commis- 
sioners desire the immediate attendance of that honorable house in 
the house of peers, to hear the commission read ; and, when the 
speaker and the house attend, as it is equally their duty to do, at 
the bar of the lords, the lord chancellor makes the royal commu- 
nication. 

872. The particular ceremonies attending the opening and pro- 
rogation of parliament have been already described ; those which 
accompany the giving of the royal assent to bills wUl be mentioned 
in a subsequent part of the \\'ork, in which the proceedings in the 
passing of bills are described. 

873. According to the established custom, when the usher of the 
black rod knocks at the door of the house of commons, he is imme- 
diately let in, without any notice being given by the sergeant-at- 
arms to the house, or any question put for his admission ; and, as 
soon as he knocks, aU other business, of what kind soever, should 
immediately cease, the doors should be opened, and when he has 
dehvered his message, the speaker and the house ought to go, 
without debate or delay, to attend the king in the house of lords.^ 

874. Where the black rod brings a message to the house, from 
commissioners authorized by the king, in which is contamed the 
subject of the commission, which they are desired to attend to hear 
read ; if the commons see any irregularity in the proceeding, they 
do not immediately comply, but when the black rod is withdrawn, 
they send a message to the lords stating this UTCgularity, and their 
reasons for declining to attend.^ 

875. In the case of a message from the house of lords and the 



1 Hatsell, II. 3T4, 375. again with the black rod and did signify to 

* Hatsell, II. 377. ^Ir. Maxwell, gentleman the house, that his majesty's assent to the biU 

■usher of the house of lords, coming into the of attainder was now about to be given, and 

house without knocking at the door, and that the lords did expect Jlr. Speaker, and 

before he was called, without the black rod in the house of commons, to come up." (May 

his hand, exceptions were taken to both, 10, 1641.) Eushworth, IV". 262. 
whereupon he withdrew, and afterwards came 



Chap. II.] communications with the executive. 351 

messengers are at the door, the speaker cannot, agreeably to the 
ancient rule and unbroken practice of the house, take the chair, for 
the purpose of admitting the messengers, till there are forty mem- 
bers present. A message from the king, to attend him in the house 
of peers, or from the lords authorized by his majesty's commission, 
is the only authority, which can allow the speaker to dispense with 
the rule as to forty members, and permit his taking the chair, though 
forty members are not present. 

876. In this country, the only occasion, on which the executive 
meets the two branches of the legislature in person, — after taking 
the oaths of office, which he is sometimes required to do in the pres- 
ence of the two houses, — occurs when he meets them for the pur- 
pose of making a personal communication to them at the com- 
mencement of each session. In most cases, it is optional with the 
executive, to send a message or to make an address in person. 
Where the latter course is adopted, the time and place are agreed 
upon beforehand. Communications which take place afterwards, 
during the session, from the executive to the legislative branches or 
either of them, are made by message. No good reason is perceived, 
why the executive may not be present, as a private individual, and 
witness the debates in either house of the legislature, at any time ; 
although a proper sense of self-respect, and of official propriety 
might restrain him from doing so. 



11. Communications of the Sovereign by Message. 

Sll. Communications by message are of two kinds, written and 
verbal. The former, which are under the royal signmanual, are ad- 
dressed to either house singly, or to both houses separately. The 
message is brought by a member of the house, being a minister of 
the crown, or one of the royal household. In the house of lords, the 
peer who is charged with the message acquaints the house, that he 
has a message under the royal signmanual, which his majesty has 
commanded him to deliver to their lordships. The lord chancellor 
then reads the message at length, and it is immediately afterwards 
read again by the clerk. In the house of commons, the member 
who is charged with the message appears at the bar, from whence 
he informs the speaker, that he has a message from his majesty to 
the house, signed by himself; which he thereupon takes to the table 
and presents to the house. The message is delivered to the speaker, 



^352 LEGISLATIVE ASSEMBLIES. [PaRT V. 

by whom it is read at length, and during the reading the members 
are uncovered.^ 

878. The subjects of communications, by messages under the 
royal signmanual, usually relate to important pubhc events, which 
require the attention of parliament ; to the prerogatives or property 
of the crown ; to provision for the royal family ; and to various 
matters in which the king, as the chief executive authoritv, seeks 
for pecuniary aid from parliament. These messages may be re- 
garded, in short, as additions to the royal speech at the commence- 
ment of the session, submitting for the consideration of parliament 
other matters which have since occurred, or \vhich were not thought 
of sufficient general interest to be embraced in the speech. 

879. The subjects of these messages under the signmanual bemg 
analogous to those which are introduced into the king's speech, 
which is dehvered to both houses, it is a general rule, that every 
such message should, if practicable, be sent to both houses." But 
it is otherwise, when the message, from its nature, can only be 
communicated to one house ; as where a message was accom- 
panied with an original declaration signed by the Pretender, to 
which the message referred ; or where the message mformed the 
house, that the king had directed certain books and papers to be 
laid before them, which had been seized by his order ; in both wMch 
cases, the documents being original, could not possibly be sent to 
both houses at the same time.^ 

880. The more proper and regular course, also, is to deliver mes- 
sages, which are communicated to both houses separately, on the 
same day, and a departure from this rule has been a subject of com- 
plaint ; but, from the accident of both houses not sitting on the 
same day, or from some other casual circumstance, it has fr-equently 
happened, that the messages have been dehvered on different 
days.^ 

881. The practice of the federal government, in sending mes- 
sages fr'om the executive, ^vhich is as follows, is m exact accordance 
•^dth the principles laid down m the precedmg paragraphs. Execu- 
tive messages, ^\'hen not in answer to a communication from one 
or both of the two houses, are usually sent at the same time to 
both;-^ but if the subject of the message is of such a nature as not 
to admit of being sent to both, as where the document to be sent 

1 May, 332. * Lords' Jour. LXVL 958 : Comm. Jour 

2 May, 332. LXXXIX. 575. 

8 Hatsell, n. 367, 368, n. 5 Jefferson's Manual, sec. XLVIL 



Chap. II.] communications with the executive. 353 

with it consists of onlj a single copy/ which, from its great size,^ 
does not admit of being seasonably copied, or, from its character,^ 
does not admit of being copied at aU, the message and document 
accompanying may be sent to one only; or a part of the documents 
may be sent to the one house and a part to the other.* In these 
cases, the message commonly contains a request that the documents 
sent may be communicated to the other house. Sometimes, also, 
a message, transmitting original documents, requests that after 
being seen by both houses they may be returned to the department 
from whence they emanated.^ The documents accompanying an 
executive message ordinarily remain in the possession of the house 
to which they are sent. It is by means of executive messages that 
documents are laid before the two houses, which the executive is 
requested to transmit to them.*^ Messages from the executive are 
usually read, by customary courtesy ,7 though the reading may be 
dispensed with,^ before they are disposed of; and they are recorded 
at length on the journal. The documents accompanying a mes- 
sage stand upon the same footing with other papers, and are neither 
read nor entered on the journal, as a part of the message which 
they accompany. 

882. Messages for pecuniary aid are also usually sent to both 
houses of parliament on account of the analogy which they bear to 
the demand for supplies, which, though addressed exclusively to the 
commons, yet makes a part of the royal speech to both houses ; but 
the form of the message differs so far as to acknowledge the pecu- 
liar right of the commons in voting money, while it seeks no more 
than the concurrence of the lords.^ 

883. Another form of communication from the crown to either 
house of parliament, is in the nature of a verbal message, delivered, 
by command, by a minister of the crown to the house of which he 
is a member. This communication is used whenever a member of 
either house is arrested for any crime at the suit of the crown ; as 
the privileges of parliament require that the house should be in- 
formed of the cause for which their member is imprisoned, and 
detained from his service in parliament. Thus, in 1780, Lord 



1 J. of H. ITT. 591. 6 J. of H. VIIT. 49; Same, VHI. 138; Cong. 

2 J. of S. III. 182. Globe, XVH. 231. 

3 J. of S. 20th Cong. 2d Sess. 155. ^ Cong. Globe, XXT. 1524, 1625. 
* J. of H. III. 591; J. of S. ITT. 182; Same, » Cong. Globe, XVIII. 4. 

20th Cong. 2d Sess. 155. » May, 333. 

6 J. of S. IV. 237, 238; Same, 20th Cong. 
2d Sess. 155. 

30* 



354 LEGISLATIVE ASSEMBLIES. [PaRT V. 

North informed the house of commons, tl\at he ^ys.s commanded 
by his majesty to acquaint the house, that his majesty had caused 
Lord George Gordon, a member of the house, to be apprehended, 
and committed for high treason.^ And at the same time Lord 
North presented, by command, the proclamation that had been 
issued, in reference to the riots in which Lord George Gordon had 
been implicated.^ 

884. In the same manner, when members have been placed 
under arrest, in order to be tried by military court-martial, the 
secretary-at-'w^ar, or some other mmister of the crown, being a privy- 
councillor, informs the house that he had been commanded to 
acquaint them of the arrest of their member, and its cause.^ Com- 
munications of the latter description are made when members have 
been placed under arrest, to be tried by naval court-martial ; but 
in these cases they are not in the form of a royal message, but are 
communications from the lord high admiral or the lords commis- 
sioners of the admiralty, by whom the warrants are issued for taking 
the members into custody ; and copies of the warrants are, at the 
same time, laid before the house.* 

885. There are other modes of communication from the king to 
the parliament, — analogous to verbal messages, — in which the 
king's pleasure, recommendation, or consent is signified. 

886. The sovereign's pleasure is signified at the commencement 
of each parliament, by the lord chancellor, that the commons should 
elect a speaker ; and "v\^hen a vacancy in the office of speaker occurs 
in the middle of a parHament, a communication of the same nature 
is made by a minister in the house. His majesty's pleasure is also 
signified for the attendance of the commons in the house of peers ; 
in regard to the times at which he appoints to be attended with 
addresses ; and concerning matters personally affecting the interests 
of the royal family .° At the end of a session, also, the royal pleas- 
ure is signified, by the lord chancellor, that parfiament should be 
prorogued. Under this head may likewise be included the appro- 
bation of the speaker elect, signified by the lord chancellor. 

887. The royal recommendation is signified to the commons by a 
minister of the crown, on motions for receiving petitions, for the 
introduction of bills, or on the offer of other motions involving any 
grant of money not included in the annual estimates, whether such 

1 Comm. Jour. XXX\TI. 903. < Comm. Jour. LXH. 145; Same, LXIV. 

2 May, 333. 214; Same, LXVH. 246; May, 333. 
8 Comm. Jour. L^^II. 597; Same, LIX. 33; ^ Comm. Jour. LXXXVI. 460 

Bame, LXX. 70. 



Chap. IL] communications with the executive. 355 

grant is to be made in the committee of supply, or any other com- 
mittee ; or which would have the effect of releasing or compounding 
any sum of money owing to the crown.^ 

888. The royal consent is given to motions for biUs, or amend- 
ments to bills, or to bills in any of their stages, which concern the 
royal prerogatives, the hereditary revenues, or personal property or 
interests of the crown or duchy of Cornwall.^ The mode of com- 
municating the recommendation and consent is the same ; but the 
former is given at the very commencement of a proceeding, and 
must precede all grants of money ; while the latter may be given 
at any time during the progress of a bill, in which the consent of 
the crown is required.^ 

889. Another form of communication, similar in principle to the 
last, is when the crown " places its interests at the disposal of par- 
liament," which is signified in the same manner, by a minister of 
the crown.'^ 

890. The respect, which is deemed to be due from the two 
houses to the executive, requires, that certain of these communica- 
tions, from the sovereign to either or both the two houses, should 
be acknowledged in an appropriate manner. The communications, 
which thus require acknowledgment, are the royal speech at the 
commencement, and messages received in the course of the ses- 
sion. 

891. When the royal speech has been read, an address in answer 
to it is moved in both houses. Two members in each house are 
selected by the administration for moving and seconding the ad- 
dress, and they appear in their places in court dresses for that pur- 
pose. The address is an answer, paragraph by paragraph, to the 
royal speech. Amendments may be made to any part of it, and 
when the question for an address, whether amended or not, has 
been agreed to, a select committee is appointed " to prepare " or 
" draw up " an address. When the report is received from this 
committee, amendments may still be made to the address before it 
is agi-eed to ; and after it has been finally agreed to, it is ordered to 
be presented to his majesty. When the speech has been delivered 
by the sovereign in person and he remains in town, the address is 
presented by the whole house ; but, when it has been read by the 

1 Comm. Jour. LXXV. 152, 167; Same, » May, 335. 

LXXXIX. 52; May, 335. < Comm. Jour. LXXXVni. 381; S 

2 Comm. Jour. LXXVII. 408; Same, 447; Same, XCI. 427; May, 336. 
LXXXVI. 485, 550; Same, XCI. 548; Same, 

CV. 492. 



356 LEGISLATIVE ASSEMBLIES. [PaET V. 

lords commissioners, or if the sovereign is in the country, the addi-ess 
of the upper house is presented " by the lords with white staves ; " ^ 
and the address of the commons by " such members of the house 
as are of his majesty's most honorable pri^y council." Wlien the 
address is to be presented by the whole house, the " lords with white 
staves " in the one house, and the privy-councillors in the other, are 
ordered " humbly to know his majesty's pleasm-e when he wdll be 
attended " with the address. Each house meets when it is under- 
stood that this ceremony will take place, and after Ms majesty's 
pleasure has been reported,^ proceeds separately to the palace.^ 

892. Messages mider the royal signmanual are generally ac- 
knowledged by addi-esses in both houses, which are presented from 
the house of lords by the " lords T\dth white staves," and from the 
house of commons by those of the privy-councillors who happen to 
be members ; in the same manner as addresses in answer to royal 
speeches when parliament has been opened by commission. 

893. In the commons, however, it is not always necessary to 
reply to these messages by address ; as a prompt provision, made 
by that house, is itself a sufficient acknowledgment of royal com- 
munications for pecuniary aid. The house of lords invariably pre- 
sents an address, in order to declare its willingness to concur in 
the measures "^^hich may be adopted by the other house ; "^ but the 
bills consequent upon messages relating to grants, are presented by 
the speaker of the commons, and are substantial answers to the 
demands of the crown. The rule, therefore, in the commons, ap- 
pears to be, to answer, by address, all written messages which relate 
to important public events,^ or matters connected with the preroga- 
tives, interests, or property of the crown ; ^ or wliich call for general 
legislative measui-es ; " but in regard to messages relating exclu 
sively to pecuniary aids of whatever kind, to consider them in a 
committee of the whole house, on a future day when provision is 
made accordingly;^ 

894. When the house is informed, by command of the crown, 
of the an'est of a member to be tiied by a military court-martial, it 
immediately resolves upon an address of thanks to his majesty, 
" for his tender regard to the privileges of this house." ^ And in 

1 Of the royal household. s Comm. Jour. LXXXV. 466; Same, 

2 Lords' Jour. LXXIV. 10; Comm. Jour. LXXXIX. 578. 

X:C^^. ll ; Same, CI. 10. ? Comm. Jour. LXXXV. 214. 

» May, 182. » Comm. .Jour. LXXX^^. 488, 491 Same 

* Lords' Jour. LXIIL 891. CV. 5.39, 544; May, 337. 

6 Comm. Jour. LXXXIL 114. 9 Comm. Jour. LXX. 70. 



Chap. II.] communications with the executive. 357 

aU cases in which the arrest of a member for a criminal ofTence is 
communicated, an address of thanks is voted in answer.^ But as 
the arrest of a member to be tried by a naval court-martial does 
not proceed immediately from the crown, and the communication 
is only made from the lords of the admiralty, no address is neces- 
sary in answer to this indirect form of message.^ 

895. The matters upon which the royal pleasure is usually sig- 
nified need no address in answer, as immediate compliance is 
given by the house ; and the recommendation and consent of the 
crown, as already explained, are only signified as introductory to 
proceedings in parliament, or essential to their progress.^ 

896. In this country, when a verbal message is to be sent by the 
executive to the two houses or either of them, it is usually in an- 
swer to a communication to him, and is returned by the same mes- 
sengers. On other occasions, as ministers and other official per- 
sons connected with the executive department, are carefully ex- 
cluded by the American constitutions, from having seats in the 
legislative assemblies, executive messages are not sent by mem- 
bers, but by the secretary of state, or analogous officer, or some 
subordinate officer of his department,'' or by a private secretary. 
The messenger commonly employed by the president of the United 
States, though others have been made use of, has been his private 
secretary. It is a breach of privilege to assault the executive,'^ or 
his messenger,^ whilst going to or returning from the delivery of an 
address or message. It is not now the custom in this country to 
answer either an executive address or message in a formal manner. 



Section II. Of Communications from the two Houses, or either 
OF them, to the Sovereign. 

897. Having thus described the forms of communication from 
the sovereign to the two houses or either of them, together with 
the forms in which they are acknowledged, it now becomes neces- 
sary to describe those which originate with the two houses or either 
of them. It is by adchesses alone, that the resolutions of parlia- 
ment, or of either house, can be conveyed dnectly to the crown. 
These resolutions are sometimes in answer to royal speeches, or 

1 Comm. Jour. XXXVII. 903, b Pari. Reg. XLV. ; Comm. Jour. LV. 7. 

2 M;iy, 33S. • J. of H. 20th Cong. 1st Sess. 587, 589, 764: 
» May, 338. J. of S. 20th Cong. 1st. Sess. 491. 

«J. ofH. ni. 123. 



358 LEGISLATIVE ASSEMBLIES. [PaET V. 

messages, but are more frequently in reference to other matters, 
upon which either house is desirous of making known its opinions 
to the crown.^ 

898. Addresses are sometimes agreed upon by both houses, and 
jointly presented to the crown, but are more generally confined to 
each house singly. When some event of unusual importance^ 
makes it desirable to present a joint adckess, the lords or commons, 
as the case may be, agree to a form of address ; and having left a 
blank for the insertion of the title of the other house, communicate 
it at a conference, and deshe Iheii" concurrence. The blank is there 
filled up, and a message is returned, acquainting the house with its 
concurrence, and that the blank has been filled up. Such addresses 
are presented either by both houses in a body,-^ or by two peers and 
four members of the house of commons ; ^ and they have been pre- 
sented also by committees of both houses ; ^ by a joint committee 
of lords and commons,^ and by the lord chancellor and speaker 
of the house of commons ; ' but the lords always learn his majes- 
ty's pleasure, and communicate to the commons, by m.essage, the 
time at which he has appointed to be attended.^ 

899. The addresses in answer to the royal speech at the com- 
mencement of the session are formally prepared by a committee, 
upon whose report they are agreed to, after having been twice read ; 
but at other times no formal address is prepared, and the resolu- 
tion for the address is alone presented. They are ordered to be 
presented by the whole house ; ^ by the lords with wliite staves, or 
privy- councillors ; ^"^ and, in some peculiar cases, by members spe- 
cially nominated.^^ 

900. The subjects upon T\"hich addresses are presented are too 
varied to admit of enumeration. They have comprised every mat- 
ter of foreign ^ or domestic policy ;^-3 the administration of justice ; ^^ 
the confidence of parliament in the ministers of the crown ; ^^ the 
expression of congratulation or condolence (which are agreed to 
nem. con. ;y'^ and, in short, representations upon all points connected 
with the government and welfare of the country. But they ought 

1 May, 33r, 338. lo Lord's Jour. XCII. 19. 

2 Coram. Jour. LXXXVII. 421; Same, " Comra. Jour. X. 295; May, 339. 
LXXXVm. 235. " Coram. Jour' LXXVIII. 278 ; Same, LXXXIL 

3 Coram. Jour. LXXX^^I. 424. 118; Same, LXXXVIIL 471. 

* Coram. Jour. LXXXY. 652. " Coram. Jour. LXXXIX. 235'. 

B Corara. Jour. I. 877. " Corara. Jour. LXXXV. 472. 

6 Coram. Jour. E. 462. 15 Coram. Jour. LXXXVII. 325. 

I 23d Dec. 1708; Comra. Jour. XVL 54. w Coram. Jour. LXXXV. 591; Same, XCU. 

8 May, 338. 493; Same, CY. 508. 

9 Comm. Jour. XCIL 492. 



Chap. IL] communications with the executive. 359 

not to be presented in relation to any bill depending in either house 
of parliament.^ 

901. When a joint address is to be presented by both houses, 
the lord chancellor and the house of lords, and the speaker and the 
house of commons, proceed in state to the palace at the time ap- 
pointed. On reaching the palace, the two houses assemble in a 
chamber adjoining the throne room, and when the king is prepared 
to receive them, the doors arft thrown open, and the lord chancellor 
and the speaker advance side by side, followed by the members of 
the two houses, and are conducted towards the throne by the lord 
chamberlain. The lord chancellor reads the address, to which the 
lung returns an answer, and both houses retire from the royal pres- 
ence.- 

902. When addresses are presented separately, by either house, 
the forms observed are similar to those described, except that ad- 
dresses of the commons are then read h^ the speaker. Each 
house proceeds by its accustomed route to the palace, and is ad- 
mitted with similar ceremonies. In presenting the address, the 
mover and seconder are always on the left hand of the speaker.'^ 

903. It is customary for all the lords, without exception, who 
attend his majesty, to be in full dress ; but several members of the 
commons always assert their privilege of freedom of access to the 
throne, by accompanying the speaker in their ordinary attire."* 

904. When addresses have been presented by the whole house, 
the lord chancellor in one house, and the speaker in the other, re- 
ports the answer of his majesty ; but when they have been pre- 
sented by privy-councillors only, the answer is reported by one of 
those who have had the honor of attending his majesty, or by one 
of the royal household.^ 

905. Another mode of communication with the crown, less direct 
and formal than an address, has been occasionally adopted ; when 
resolutions of the house,'' and resolutions and evidence taken before 
a committee," have been ordered to be laid before the sovereign. 
In such cases the resolutions have been presented in the same man- 
ner as addresses, and answers have sometimes been returned.^ 



1 Lords' Jour. XII. 72, 81, 88; Comm. Jour. XXXIX. 884; Same, XL. 1157; Same, LX. 
NHII. 670; Grey, L 5; May, 339. 206; Same, LXYH. 462; Same, LXXVIIL 

2 May, 339. 316. 

3 May, 340. f Comm. Jour. XC. 534. 

* They are not permitted to enter the royal ' May, 341. The paragraphs composing 

Dresence with sticks or umbrellas; May, 340. this and the preceding section are, for the 

6 May, 340. most part, taken almost literally from this 

» Comm. Jour. XXXVIL 330; Same, author. 



360 LEGISLATIVE ASSEMBLIES. [PaRT V. 

906. When the king's answer to an address has been reported, it 
is the usual practice for the house to come to a resolution express- 
ing its thanks therefor. 

907. In this country, though the formal address might properly 
be employed, it is not now commonly in use, in making communi- 
cations from one or both branches of the legislature to the execu- 
tive ; but they are made by means of resolutions authenticated and 
transmitted in the usual manner. Fortnerly, it was the practice in 
the congress of the United States to transmit resolutions to the 
executive by members, but this practice appears, for many years, 
to have been discontinued. 



♦ 

CHAPTER THIRD. 

OF ACCOUNTS, PAPEES, RETURNS, PRESENTED IN PURSUANCE OF 
ORDERS, OR IN OBEDIENCE TO ACTS OF PARLIA3HENT. 

908. One of the powers incidental to parliament is that of ob- 
taining aU information which may be necessary to enable it to act 
efficiently, thoroughly, and properly, in the exercise of its various 
functions.^ Each of the houses, therefore, as it acts separately and 
independently of the other, is invested T\''ith this authority, and may 
consequently resort both to other official persons and bodies for 
information connected \\dth their respective offices or functions,^ 
and also to private individuals, for aU information in their posses- 
sion relative to subjects or matters pending in parliament. Some- 
times, also, acts of parliament pro\'ide that certain official persons 
shall make periodical or special returns, to parliament, or that com- 
missioners appointed for some special purpose shaU present the 
result of their inquiries to parliament. The proceedings which take 
place with a view to obtain, or wdth reference to the receiving, of 
information of this official character, ^'ill form the subject of the 
present chapter. Proceedmgs with reference to the information 
derivable from private sources wdll be treated of in the chapter 
follo^\dng, relating to "^dtnesses. 

1 By Sir WiUiam Yonge, Comm. Deb. Vm. - See also Cong. Globe, XI. 712. 
15. 



Chap. III.] accounts, papers, retuens. 361 

909. The authority to obtain information of the official character 
above mentioned is invested in each hoiise separately, and may be 
exercised either directly by an order of the house, or indirectly by 
means of an address to the crown. The ordinary accounts relating 
to trade, finance, and general or local matters, are ordered directly, 
and are returned, in obedience to the order, to the house from 
whence it issues ; but returns of matters connected with the exer- 
cise of the royal prerogatives, are only to be obtained by means of 
addresses to the crown.^ 

910. The distinction between these two classes of returns is im- 
portant; as, on the one hand, it is considered irregular to order 
directly that wliich should be sought for by address ; and, on the 
other, it is regarded as a compromise of the authority of parliament, 
to resort to the crown for information, which it can obtain by its 
own order. It is not always easy, in practice, to make the neces- 
sary discrimination ; but, as a general rule, it may be stated, that 
all public departments connected with the collection or manage- 
ment of the revenue, or which are under the control of the treasury, 
may be reached by a direct order from either house of parliament ; 
but that public officers and departments subject to the secretaries 
of state are only to receive their orders from the crown. Thus, 
returns from the customs, the excise, the stamps, and taxes, the 
post-office, the board of trade, or the treasury, are obtained by 
orders. These returns include every account that can be rendered 
of the revenue, and expenditure of the country ; of commerce and 
navigation ; of salaries and pensions ; of general statistics ; and of 
facts connected with the administration of all the revenue depart- 
ments. Addresses must be presented for treaties with foreign 
powers, for despatches to and from the governors of colonies, and 
for returns connected with the civil government, and the administra- 
tion of justice.^ 

911. Motions for addresses, or for orders, with a view to obtain 
papers or returns, are subject to debate and amendment, according 
to the ordinary course of proceedings in parliament. It is also 
necessary, that in the house of commons they should be preceded 
by notices,'^ in reference to which the following rules are laid down 
by Mr. Speaker Abbott : first, any member may move for any of 
the returns, or public accounts, usually returned to parliament every 

1 May, 393. sidered in the first division of the sixth part. 

' May, 394. In this country nothing of this kind is neces- 

' The subject of notices of motions is con- sary, unless required by some special rule. 

31 



362 LEGISLATIVE ASSEMBLIES. [PaRT V. 

session, T\athout giving any notice ; second, any of his majesty's 
seixants in the house of commons may move for any returns they 
choose, at the same time stating them to be for the use and informa- 
tion of the house, v^'ithont any pre^lous notice; third, any gentle- 
man may move for any official document, "^dthout notice, if he at 
the same time states that he has communicated his intention to 
some one or more of the persons, in whose department such docu- 
ment is deposited, and that there is no likehhood of objection to 
the motion ; in all other cases, no motion for any such document 
can be entertained by the house, \\ithout pre\dous notice.^ 

912. Addresses for papers or returns pray the sovereign to be gra- 
ciously pleased to give directions to the proper officers, that the 
documents desired may be laid before the house ; and are ordinarily 
ordered to be presented to the sovereign by such members of the 
house as are of the privy council. When presented, an answer is 
returned, which is afterwards reported to the house by one of the 
members by whom the address has been presented. The answer, 
if favorable, is, that his majesty had commanded him to acquaint 
the house, that he will give directions accordingly. 

913. K the papers or information sought to be attained by means 
of an address should be such, as, either in whole or in part, in the 
judgment of the crown, it would not be proper to make pubhc, the 
ansvrer is, that the subject to which the papers or some of them 
relate, is one which requkes the greatest secrecy, and that the 
information deshed cannot be given T\-ithout manifest prejudice to 
the public ;- or, that the subject of the address being of the greatest 
importance, his majesty will take it into his most serious considera- 
tion, in order to see how far the same can be complied with, "v^-ith- 
out prejudice to the public.^ K the house should be dissatisfied 
with such an answer, which, ^\dthout strong reasons, would not be 
likely to be the case,*^ it is competent for it to present a further 
address, representing its right to have the information in question, 
and earnestly beseeching his majesty to order it to be laid before 
them.-5 

914. When papers are ordered directly, the order is signed by the 
clerk of the house, and sent at once to the persons by whom it is to 
be executed ; and, it seems, that persons, who are thus subject to 

J Hans. (1) W. 521, 522. See also Eeg. of ^ Comm. Jour. XXIV. 57. 

Deb. X. Part L 12, 13. * Comm. Deb. VIII. 17. 

2 Comm. Jour. XX. 749 ; Same, XXI. 70, '= Comm. Jour. XX. 749. 
293; Same,- XXIV. 56; Comm. Deb. \^II. 17. 



Chap, III.] accounts, papeks, returns. 363 

the authority of the house have no discretion to determine that the 
information sought for ought not to be made public.^ 

915. If an address should happen to be presented for papers, 
which are within the direct order of the house, it is the usual course, 
provided no answer to it has been reported, to discharge the order 
for the address, and to order the papers to be laid before the house ;2 
and so when a return has been ordered, for which an address 
ought to have been moved, the order is discharged, and an address 
presented in its stead.'^ 

916. When an address for papers has received a favorable 
answer, namely, that the crown will give directions to the proper 
officers to prepare and lay them before the house, the parties who 
are to make them are then within the immediate reach of an order 
of the house,^ and consequently stand upon the same footing with 
parties originally within the direction of the house. If any parties, 
thus under obligations to the house to make the required returns, 
whether originally, or upon the king's answer to an address, neglect 
to make them within a reasonable time, they may be ordered to 
make them forthwith ; and if after such order, they continue to with- 
hold them, they may be ordered to attend the house, and may be 
censured or punished, according to the circumstances of the case.^ 

917. The effect of a prorogation being to put an end to every 
proceeding pending in parliament, and to vacate all orders not 
fully executed, there is no doubt, that an order for returns or papers, 
whether by way of address, or by direct order, ceases to be obliga- 
tory upon a prorogation ; and, it is usual, therefore, when a proro- 
gation takes place before a return is presented in pursuance of the 
directions of the king or of the order of the house, (if the papers 
are then wanted,) to renew the order in the ensuing session, as if 
no order had been previously given. Returns, however, are fre- 
quently made, in pursuance of addresses presented at a previous 
session without any renewal of the address.^ Orders are also 
occasionally made, which assume that an order has force from one 
session to another ; as, for example, returns have been ordered " to 
be prepared, to be laid before the house in the next session ; " "^ 
orders of a former session have been read, for the information of the 
house, and the papers therein mentioned ordered to be prepared and 
produced ; ^ and, on one occasion, the order for an address made 

1 Comm. Deb. VIII. 17. s Comm. Jour. XCVIII. 428. 

2 Comm. Jour. XCII. 580. ' Comm. Jour. LXX VIII. 472 ; Same, LXXX. 

3 Comm. Jour. XCII. 365. 631. 

* Comm. Jour. XC. 413, 650. 8 Comm. Joixr. LXXVIII. 72. 

6 May, 195. 



364 LEGISLATIVE ASSEMBLIES. [PaET V 

by a former parliament was read, and the house being informed 
that certain persons had not made the return, they were ordered to 
make it forthwith.^ 

918. Besides the modes above described, in which the two 
houses obtain official information, by means of orders and addresses, 
which emanate from themselves, there are t^A^o other modes by 
which documentary information of the same general character is 
placed in the possession of one or both houses, for their considera- 
tion, namely, by command of the king, and in compliance -^ith acts 
of parliament.2 

919. The ordinary mode in which papers and documents are 
presented to the house, either in pursuance of its direct order, or 
of its address to the king, or in compliance with acts of parliament, 
is, for the officer or person who is to present them, if not a member, 
to attend at the door of the house, and on the house being there- 
upon informed that he is in attendance, he is called in, and, at the 
bar, presents to the house the papers with which he is charged. If 
a member, he presents them in the ordinary manner, in which 
papers are presented to the house. Sometimes, however, under 
peculiar cu'cumstances, papers are transmitted to the speaker, and 
by him presented to the house. Sometimes, also, returns are 
directed to be made to the clerk, in which case, they are presented 
by him to the house. 

920. When a motion is made for the production of papers, in 
either of the modes above mentioned, the papers sought to be 
obtained should be particularly described ; ^ and, if the propriety 
of the motion is manifest, or if no objection is made, it is the con- 
stant usage for the motion to be acceded to as a matter of course, 
without any reason being given ; but, if the ground of the motion 
is not clear, or if objection is made, it is then incumbent upon the 
mover to state the reasons upon which his motion is founded in 
order that the house may judge of the necessity, importance, and 
expediency of calling for the papers which are the subject of it.* 
In order to establish a parliamentary ground for ordering the pro- 
duction of papers, several things appear to be essential, which are 
enumerated in the following paragraphs. 

921. I. It seems, that the person or body thus subject to the 
order of the house, must possess a public official character, known 
as such in law ; as, for example, where it was proposed to move for 

1 Comm. Jour. XC. 413. a Pavl. Eeg. XI. 128. 

* May, 395. 4 parl. Reg. XI. 132, 133 ; Cav. Deb. H. 237 



Chap. III.] accounts, papers, returns. 365 

copies of all communications made to the chairman of the commit- 
tee at Lloyd's for the relief of wounded seamen, Mr. Speaker 
Abbott observed, " that the society were not known to that house, 
and, therefore, could not form part of a motion from the chair." ^ 

922. 11. The paper, or document, a copy of wMch it is proposed 
to order, must be official in its character, that is, an office docu- 
ment or paper,^ and not a mere private letter or other "\\'Titten 
document. Where a motion was made for the production of a 
copy of an opinion and advice, given by counsel in a case of toll, 
in ^\^hich the corporation of Kilkenny was interested, the original 
of which was in the possession of the present mayor and aldermen 
of that city ; and objection was made, that the document required 
was " the opinion confidentially given by a counsel to his clients," 
and that to call for the public production of such a document " was 
as unprecedented as it would be of dangerous example," the motion 
was rejected.-^ So, where certain papers relative to Westminster 
Abbey were moved for, the motion was objected to and negatived 
on the ground, among others, " that it was for the production of 
papers, v\ hich were, in fact, the titles of the dean and chapter to 
certain houses and lands they possessed, and that it would be a 
dangerous precedent to establish, to grant an application to know 
the titles of landlords to their property." ^ 

923. III. In the thkd place, it is essential, that a motion for the 
production of papers should rest on a parliamentary ground : — 
1. They must relate to a subject or matter within the legitimate 
powers and appropriate functions of parliament. Where the pro- 
duction of papers was objected to on the ground, that the subject 
to which they related was one which belonged to the jurisdiction 
of the ordinary tribunals, and with which parliament had no 
authority to interfere, and that the only use which could be made 
of the documents would be as evidence against the claims of the 
party called upon to produce them, the motion was refused;^ so, 
it is no proper ground for the production of papers, that they will 
either prove or disprove an assertion made by a member, on some 
former occasion ; '^ or that they will enable the mover to proceed 
individually upon a charge against a party, whom he desires to 
bring before some other body or tribunal.'' 2. The matter, to 
which the papers relate, must either be already pending, or about 

1 Hans. (1), XT. 271. 6 Hans. (2), XV. 194, 195, 199. 

2 Pari. Reg. XI. 128. 6 Hans. (1), XXH. 120. 

8 Hans. (3), LXXIV. 865. r Hans. (3), XVI. 194, 195. 

♦ Hans. (2), XV. 194, 195, 199. 

31* 



366 LEGISLATIVE ASSEMBLIES. [PaET V. 

to be introduced. If such matter is already pending, the propriety 
of the motion for papers A\all be apparent, or otherT\dse, from the 
terms in which the motion is expressed ; if not pending, then it is 
incumbent upon the member who moves for papers, to declare that 
he intends to found some motion, and what, upon them when pro- 
duced,^ or to explain in what manner their production will throw 
light upon any matter hereafter to be moved or pending in the 
house.- Thus, where a motion ^'as made in the house of lords, for 
the production of certain reports, which had been made to the privy 
council, the mover explained the ground of his motion to be, to lay 
the foundation of a measure, which it v>'as the intention of the 
government immediately to introduce ; that " he was aware, that 
such an act could not originate in that house, but it w^ould be 
immediately brought into the other house, and it was probable their 
lordships would be speedily called upon to give it their sanction." ^ 
3. The papers must be so necessary and pertinent to the matter to 
which they relate, that it cannot otherwise be fully and clearly 
understood.* 

924. IV. The information or document moved for, if not in the 
possession, must, at least, be v^ithin the po"^'er, of the officer who is 
called upon, to obtain it. Thus, an account being moved for of 
the places of profit and emolument, and of the pensions enjoyed 
under the crown in Ireland, by the representatives in parliament of 
that part of the united kingdom ; it v^^as objected that there was no 
officer of the executive government who could present the account 
required, as none had any official knowledge of such pensioners and 
placemen as ^'ere members of that house ; the speaker, Sir John 
JNIitford, observed, " that the motion before the house could not 
be complied with; no person could give information who were 
members of that house, but the clerk of the crovvm in Ireland ; and 
he was not bound to certify to any person who should caU on him 
who those members were;" and, thereupon, the mover obtained 
leave to withdraw his motion, in order to amend it, so as to provide 
for the appointment of a committee to inquire.^ 

925. V. The paper moved for, though in other respects proper, 
ought to be calculated to give important and useful information to 
the house. It would seem, therefore, to be irregular to call for 
papers, which had been already published, and were or might be in 

1 Pari. Eeg. XVI. 509. * By Sir Wm. Yonge, Comm. Deb. VUL 15 

2 Hans. (3^, X. 248, 249. Cav. Deb. 11. 237. 

3 Hans. (3), X. 248, 249. ^ parl. Reg. LIX. 247, 249, 



I 



Chap. III.] accounts, papers, returns. 367 

everybody's ha ads ; unless it were considered necessary to authen- 
ticate them, or to bring the subject of them before the house in a 
more solemn manner, in which case, they may be ordered from the 
proper office.^ Where it was proposed to proceed, in ihe house of 
lords, to consider a printed paper, in the form of a proclamation or 
manifesto said to have been published by his majesty's commis- 
sioners in America, and objection "was made, that the paper was 
not authenticated, it was thought proper to address the king for 
copies of all papers published by these commissioners ; '-^ and so 
where papers already in a printed form, and which had been pub- 
lished and circulated, were moved for, and it was objected, " as a 
very novel mode of parliamentary proceeding, to call upon the 
admiralty board, or any other board or office, to produce what was 
either notoriously known, or might with facility be procured in 
another manner," yet as the documents moved' for were of an offi- 
cial character, it was deemed proper to order them to be produced 
in the usual manner.^ It would seem to be irregular, also, to move 
for papers, which though pertinent contain no information of any 
importance. Thus, where a motion was made for the production 
of certain letters, and it was objected, that, if produced, " they 
would be found to contain nothing but a simple resignation on the 
part of 1he duke of Cambridge, and a formal acceptance on the 
part of the commander-in-chief," and the mover thereupon explain- 
ed, " that he did not move for the papers from any idea that they 
contained any thing of importance but merely for the purpose of 
grounding a resolution upon them," — the motion was refused.^ 

926. When papers or accounts have been ordered, it is the duty 
of the persons who are to produce them to lay them before the 
house immediately or within a reasonable time, in as perfect a state 
as they can be made up ; if presented in an imperfect form they 
should be accompanied with reasons showing why the order could 
not be more fully complied with ; the house will then judge whether 
the reasons are satisfactory, and Avill take measures accordingly.'^ 

927. The principles relating to this subject, drawn from the prac- 
tice of parliamjent, and developed in the preceding paragraphs, are, 
doubtless, equally applicable here, but it would be obviously im- 
possible, to set forth, in detail, aU the occasions on which, and the 
public officers on whom, requisitions for information may be made 

1 Pari. Reg. XI. 49, 128. * Hansard (1), IX. 171. 

« Pari. Reg. XI. 50. 6 Pari. Reg. IV. 37. 

» Pari. Reg. XI. 127, 128, 129, 



368 LEGISLATIVE ASSEMBLIES. [P.-^ET V. 

in this country. The practice, in the congress of the United States, 
in this respect, will probably give an adequate idea of vchat takes 
place in the several States with regard to the ordering of papers. . 

928. WTien information is wanted by either house,, respecting 
any matter which is within the appropriate functions, or linown to 
be in the possession of any department, or public officer, the course 
is to pass a resolution, directing the head of that department or 
officer, to prepare and lay before the house a statement containing 
the information in question. The answer to these requisitions is 
inclosed in a letter directed to the presiding officer of the house 
which ordered the information, and sent to him to be laid before 
the house. Eetmrns, statements, and accounts, made to either 
branch, in pursuance of law, are transmitted to it usually in the 
same manner. When applied to personally, if information merely 
is wanted, they are directed to furnish it ; if their opinion is also 
desii-ed, they are requested to give it.^ This right applies as well 
to the previous collection of information, as to the communication 
of it when obtained ; and does not appear to be confined exclu- 
sively to officers directly connected with the administration of gov- 
ernment ; thus by an order of the house of representatives in con- 
gress, the clerks of the district courts were directed to obtam and 
furnish the attorney-general v-dth tables of fees payable in the high- 
est com-ts of the States where they respectively resided.^ In all these 
cases, a copy of the resolution duly authenticated by the clerk, is, 
of course, sufficient. 

929. Formerly, it appears to have been the practice to request 
the president to direct the proper officer to prepare and lay before 
the house the information wanted.^ But this practice has, it is 
beKeved, been long discontinued; and papers are now in all cases 
directly requested to be furnished by the president, in virtue of a 
resolution for the pm-pose.-^ The resolution usuaUy requests the 
president to furnish the information in question only if, in his opin- 
ion, not incompatible with the public interest ; but if this clause is 
omitted, the president ^^tII feel at equal liberty to decline the re- 
quest if he thinks proper. This, of course, very rarely happens,^' and 
the desned information is usuaUy obtained whether it lies within 
the president's peculiar department or knowledge or not ; but the 

1 Cong. Globe, XV. 147. * J. of H. L 551, 552; Same, VIL 459; 

2 J. of H. n. 212. Same, Ylll. 127; Same, 20th Cong. Ist Sess. 

3 J. of H. XL 239, 259, 237; Same, 298; J. of 581; Same, 29th Cong. 1st Sess. 653. 
S. U. 208. • 5 J, of H. 17th Cong. 1st Sess. 198. 



Chap. IV.] witnesses. 369 

request may be, and sometimes is, declined ; ^ and there is one kind 
of information that is always refused, namely, the instructions 
given by the president upon which a treaty is negotiated,^ although 
these instructions are laid before the senate in executive session, 
and although the treaty itself may be before the house. It was 
formerly the practice to transmit a resolution requesting papers 
of the president by two of the members, who usually reported 
thereon verbally that they had delivered the request with which 
they were charged, and that the president answered them that he 
would give the subject due attention.^ But the practice now is, in 
all cases, that the resolution is authenticated and transmitted in the 
usual manner by the clerk or secretary. In order to enable the 
executive to comply with resolutions of this description, it is pro- 
vided by the constitutions in some of the States, that " all officers in 
the executive department, when required by the governor, shall give 
him information in writing, upon any subject relating to the duties 
of their respective offices." 



CHAPTER FOURTH. 

OF WITNESSES, AND THEIR ATTENDANCE AND EXAMINATION 
BEFORE EITHER HOUSE OR COMMITTEES. 



Section I. Of the Occasions on which an Examination of 
Witnesses may take place. 

930. One of the modes, by which a legislative assembly obtains 
a knowledge of the facts, upon which its orders, resolutions, or acts 
are founded, is by the examination of witnesses; who, when a 
proper occasion occurs, may be summoned and examined, as in 
the ordinary courts of justice. 

1 J. of H. n. 482, 487; Same, 18th Cong. 1796, and again by President Polk, by his 
1st Sess. 139 ; Cong. Globe, XVHI. 166, 167. message of 20th April, 1846. See Appendix, 

2 J. of H. 30th Cong. 1st Sess. 232; Ann. of Xi. 

Cong. 4th Cong. 1st Sess. 760. Information ^ j. of H. H. 239, 259; Same, 482, 487; 
of this kind was first refused by President Same, VIII. 60 ; Same, 87; Same, 146. 
Washington, by his message of 30th March, 



370 LEGISLATIVE ASSEMBLIES. [PaRT V. 

931. Before an examination of "witnesses can take place, con- 
sistently "s\dth the rules of orderly proceeding, it is necessary, that, 
in some form or other, the house should come to a previous resolu- 
tion, that an inquiry shall be entered into vdth reference to the sub- 
ject on ^'hich such examination is proposed.^ It is not in order, 
therefore, for a member to offer to produce witnesses to be examin- 
ed at the bar, or to proceed to examine another member in his 
place, in support of a motion, v^hich he has made, or is about to 
make.^ 

932. When the house has come to a resolution, that an inquiry 
shall be entered into vith reference to a particular subject, either in 
the house itself, or in a committee of the whole house ; or has 
appointed a select committee to make such inquiry, either by a 
reference to it of some petition, return, or other document, or by a 
resolution ; or has received and entertained a petition praying to 
be heard in favor of, or agamst, a particular bill, or some provision 
of a biU which is pendmg ; in all these cases, there is a proper 
occasion for ordering or otherwise procuring the attendance, and 
proceeding to the examination, of witnesses. 

933. The inquiries, in which it is customary for either house of 
parliament to examine witnesses, may be regarded, and it Avill be 
useful for some purposes to consider them, as of three different 
kinds. The first kind includes those cases in which the house is 
engaged in the exercise of its inquisitorial functions merely, that is, 
when it is investigating some topic or matter of public interest, 
with a ^"iew to general legislation, or to some ulterior proceeding, 
in which the public generally are concerned. The second com- 
prises those inquiries in which the house is engaged in the exercise 
of its judicial or quasi judicial powers, for the purposes of punish- 
ment, for some offence either directed against itself, or its members, 
or against the public. The third sort of inquiries consists of those, 
in which the rights and interests of individuals on the one side and 
on the other are alone mvolved. 



Sbctiox II. Of the several Modes oe obtatnustg or compelling 

THE AtTENDAJ^CE OF WlTJTESSES. 

934. When it has been resolved upon, that an inquiry shall take 
place before the house, or before a committee of the whole, the 

1 Pari. Eeg. XXm. 684. "- Hansard (2), XXIV. 225, 226; HatseU, U 

137, and notes. 



Chap. IV.] witnesses. 371 

usual course is for the house, on the suggestion or motion of those 
members by whom the inquiry is promoted/ or who take an inter- 
est in the subject of it, to order that certain witnesses named '^ by 
them 2 do attend the house or the committee on a day fixed.^ K 
the inquiry is in the hovise of lords, either before the house, or any 
committee, whether of the whole or select, the witnesses are ordered 
to attend at the bar, on a certain day, to be sworn.'^ 

935. The mode of proceeding stated in the foregoing paragraph 
is according to the modern practice. At an earlier period, it ap- 
pears to have been customary to pass an order directing Mr. 
Speaker to issue his warrant for summoning the witnesses.^ The 
order for the warrant sometimes contained the names of the wit- 
nesses to be summoned ; but, more frequently was in general terms, 
for the attendance of all such witnesses, " as the parties of either 
side shall think fit to make use of at the hearing," ' or " as shall be 
desired to attend the committee ; " ^ or, of witnesses to attend at 
the hearing of the matter upon a certain petition,'' or bill ; ^^ or " of 
such witnesses as there shall be occasion for at the hearing of the 
cause touching the return and election" for such a borough.^^ In 
all these cases, the persons to be summoned as witnesses were of 
course to be designated by the parties on whose behalf the order 
was passed, in order that their names might be inserted in the war- 
rant. This practice appears now to be confined to the trial of con- 
troverted elections, in reference to which it has been established .by 
law. 

936. The order for the attendance of witnesses, or for the issuing 
of a speaker's warrant to summon them, may also require the pro- 
duction of books, papers, and records. In the former case, the 
order ought to be as specific, and to describe the books, papers, or 
records to be produced, with as much certainty as the nature of the 
case will admit of ; in the latter the order may be in as general 
terms, as, for example, for such books or writings as shall be desired, 
as the order for issuing the warrant ; ^^ but the warrant itself should 
be as specific and as certain as above mentioned. It does not ap- 
pear to be necessary, however, that the name of the particular wit- 

1 Grey, III. 51. s May, 306. 

2 It seems there may be a summons for wit- ' Comm. Jour. X. 34, 136 236 278, 547. 
nesses without divulging their names. Hatsell, ' Comm. Jour. VIII. 322. 

IV. 213. Members, moving for witnesses to be * Comm. Jour. X. 547. 

summoned, directed by the house to name, ' Comm. Jour. X. 278. 

them. Grey, III. 51 2, 58 \ 10 Comm. Jour. X. 236. 

» Grey. III. 51. " Comm. Jour. X. 34. 

* May, 307. ^ Coram. Jour. X. 236. 



372 LEGISLATIVE ASSEMBLIES. [PaRT V. 

ness, who is required to produce a paper or other document should 
be mentioned in the order or warrant, provided he be otherwise 
designated or may be ascertained with sufficient certainty. Thus, 
the order may direct that the proper person or officer shall attend 
with the books, papers, or records desired, as, for example, a proper 
person from a banking-house named, with their banking books for 
a particular m.onth ; ^ or the proper officer with a specified paper 
from one of the public offices ;2 or a particular paper may be 
ordered to be laid before the house, without specifying by whom 
it is to be done.s 

937. The house may, of course, make all such orders, with refer- 
ence to the attendance and examination of witnesses, as the pecu- 
liar cu'cumstances of each case may render convenient or necessary. 
Thus, there may be as many separate orders made from time to 
time, for the attendance of witnesses, during the inquiry, as the con- 
venience of the parties, or the cncumstances of the investigation, 
may require ; "^ so an order for the attendance of witnesses on the 
hearing of a private matter may, if the house thinks proper, impose 
it as a condition upon the parties, that they shall pay the witnesses 
their reasonable charges, if requned, for their travel and attend- 
ance ; ^ so, the house may, on the petition of one of the parties, 
order the other to furnish the petitioner with the names of the wit- 
nesses to be produced by such party, on pain of not being per- 
mitted otherwise to examine them ; ^ so the order for the attendance 
of witnesses may be discharged altogether ; '' or discharged for one 
day and renewed for another ;S or discharged as to a particular 
witness and another substituted in his place.^ 

938. An order for the attendance of witnesses may require them 
to appear and attend from day to day, until the inquiry has been 
concluded ; i" or, which is the more usual form, it may direct their 
attendance either forthwith, or on a particular day named, without 
requiring them to continue in attendance. In this latter case, the 
order is obligatory on the witness only during the day on which 
his attendance is directed ; '^ on v/hich day it is the duty of the wit- 



1 Comm. Jour. LXIV. 17, 35. with the places of abode as -well as with the 

2 Comm. Jour. LXIV. 23, 24. names of the witnesses. The former part of 

3 Comm. Jom\ LXIV. 28. the petition was refused. 

* See Comm. Jour. LXIV. the several '' Comm. Jour. IX. 502. 

orders for the attendance of witnesses on the ^ Comm. Jour. XXXV. 200, 588. 

inquiry relative to the Duke of York. ^ Comm. Jour. XXXV. 329. 

6 Comm. Jour. VIII 322. lo Comm. Jour. X. 395. 

8 Comm. Jour. XIII. 290. In this case, the " Comm. Jour. LXIV. 17, 24, 31, 32. 
request of the petitioners was to be furnished 



Chap. IV.] witnesses. 373 

ness to attend and remain in attendance, during the sitting of the 
house, whether called or not, unless the order should be discharged, 
or the inquiry should be postponed,^ on pain of being punished, if 
he withdraws, as for a contempt.^ It is necessary, therefore, where 
witnesses are in attendance, in pursuance of such an order, and 
their attendance is made necessary on another day, either because 
the investigation is not concluded, or because it is put off to a 
future time, that the order for their attendance should be renewed 
for the day on which it is proposed to continue the inquiry.'^ 

939. When the inquiry is referred to a select committee, the 
most usual course is, either at the time of its appointment, or sub- 
sequently, to give the committee power to send for persons, papers, 
and records ; in which case, the attendance of a witness before the 
committee is ordinarily secured by an order signed by the chairman 
by direction of the committee ; but if a witness should neglect to 
appear when summoned in this manner, his conduct must be re- 
ported to the house, by whom an order is immediately made for 
his attendance. If, in the mean time, the witness should appear 
before the committee, the order for his attendance may be dis- 
charged ; * but, if he still neglects to appear, he is to be dealt with 
as in other cases of disobedience to the order of the house.''^ If the 
committee should not be authorized to send for persons, papers, and 
records, at the time of their appointment, this power may be con- 
ferred upon them afterwards, if necessary ; or, on the request of the 
committee, or otherwise, an order may be made by the house for 
the attendance of witnesses before them. 

940. The power to send for persons, papers, and records, is not 
usually given to committees on private bills. The parties interested 
are generally able to secure the attendance of their witnesses, with- 
out applying to the committee ; but when they desire to compel the 
attendance of an adverse or unwilling witness, they should apply 
to the committee, who, when satisfied that due diligence has been 
used, and that the witness is material to the inquiry, direct a special 
report to be made to the house; upon which an order is made 
to oblige the witness to attend and give evidence before the com- 
mittee.*^ 

941. "When the evidence of a peer, peeress, or lord of parlia- 

1 Coram. Jour. XXXV. 200, 588. * Comm. Jour. XCI. 352. 

2 Hans. (1), XI. 642; Hans. (2), H. 320. 5 May, 308. 

s Coram. Jour. LXIV. 17, 24, 31, 32; Same, « May, 308; Comm. Jour. XCVHI. 152, 
XXXVn. 354, 724, 727 ; Same, XXXV. 202, 153, 174, 279, 288. 
823, 324. 

32 



374 



LEGISLATITE ASSEMBLIES. 



[Paet V 



ment, is required in the house of lords, the lord chancellor is 
directed to \^Tite a letter to the party, desirmg his or her attend- 
ance to be examined as a \\"itness.^ 

94:2. K the evidence of a member of the house of commons is 
desired in the house, or before a committee of the whole house, the 
course is to order such member to attend in his place, on the day 
■when the inquiry is to take place.^ If no order for the attendance 
of a member has been made, the house or committee of the whole 
may at any time, during ihe progress of the inquiry, caU upon any 
of the members present to be examined as ^^dtnesses. But -^'hen 
the attendance of a member is required before a select committee, 
which has a general power to send for persons, papers, and records, 
it is the custom to request such member to come, without address- 
ing a summons to him in the ordinary form. If a member, so 
requested, refuses to attend and give his e^ddence, the committee is 
to inform the house of such refusal. The house may then, if it 
thinks proper, make an order for the attendance of the member 
before the committee.-^ A member may also submit himself to 
examination as a -^"itness, without any order of the house ; in 
which case, he is to be treated precisely like any other witness, and 
is not ac Kbert}' to qualify his submission, by stipulating that he is 
to answer only such questions as he pleases.^ 

943. K the attendance of a peer should be desued, to give evi- 
dence before the house of commons, or any committee of that 
house, a message is sent bv the house of commons " to the lords to 



1 ilay, 307. 

- 7,la.y, 308. 

5 Comm. JoTir. X. 51; Same, XIX. 403. 

* Some question appears to have been re- 
cently made in the house of commons, whether 
it Tvas within the constitntional power of the 
house to compel the attendance of one of its 
members to give evidence before a select com- 
mittee. On the 28th June, 1842, a select 
committee reported, that a member of the 
house had declined to comply with their re- 
quest for his attendance, as a witness. A 
motion was thereupon made, for ordering him 
to attend the committee and give evidence. 
This motion led to a debate, which was ad- 
journed; and, in the mean time, a committee 
was appointed to examine precedents. But, 
on the day for resuming the debate, the mem- 
ber in question having signified his willingness 
to attend the committee, the motion was with- 
drawn, and the m.itter ended. In the course 
of the debate, which took place on this occa- 
sion, the speaker, Mr. Shaw Le Fevre, being 



called upon to stare what he considered to be 
the usage with respect to members attending 
select committees, informed the house, " that 
he had searched the .Journals, within the last 
two or three days, and had not as yet dis- 
covered any instance, where an order had 
been made on a member of the house to give 
evidence before a select committee." — Hans. 
(3), LXIV. rri, 982, 1015. The speaker seems 
to have overlooked entirely the case of the 
four members, who, on the 19th January, 1720, 
were ordered by the house to attend the com- 
mittee of secrecy, and be examined as wit- 
nesses in the most solemn manner, relating to 
certain proceedings of the South Sea Com- 
pany, of which these members were directors. 
— Comm. Jonr. XIX. 403. See also, in rela- 
tion to the general power of the house to 
examine members as witnesses, the remarks 
of Mr. Wynne, and Sir Eobert Peel, Hans. (2) 
XVIH. 1067, &c., 1084, &c., in which the 
authority of the house to compel its members 
to testify is fully sustained. 



Chap. IV.] wrrifESSES. 375 

request that their lordships will give leave to the peer in question 
to attend, in order to his being examined-" K such peer should be 
in his place, when this message is received, and he consents, leave 
is immediately given for him to attend and be examined, if he 
thinks fit, K not present, a message is returned on a future day, 
when the peer has, in his place, consented to go. The same form 
exactly is observed by the lords, when they desire the attendance 
of a member of the house of commons. ^Yhen the attendance of 
a member of one house is de?ired by a committee of the other, it is 
advisable to give such member private intimation, and to learn that 
he is then Trilling to attend, before a formal message is sent to 
request his attendance.^ These formalities are not usual in the 
case of private bills.^ 

944. When the attendance of any of the officers of one house is 
desired in the other, in order to their being examined as ^vi'>nesses, 
either in the house itself or before any of its committees, the same 
ceremony is maintained between the two houses, as where the 
members of the one are requested to attend in the other as wit- 
nesses ; -5 but when leave is given them to attend, the words " if 
they think fit," ^vhich are used in the case of members, are omitted 
in the answer.^ AYheiher, when one has given its members or offi- 
cers leave to attend the other or its committees, as witnesses, the 
latter house thereby becomes invested with power to punish such 
\^itnesses for prevarication or other contempt, is a question, which 
does not seem ever to have been made. If \Kdtnesses of this de- 
scription ^hould be guilty of any breach of their duty, in this respect, 
the dignity' of the house against which they have offended v."ould 
require their punishment ; but a due regard to the dignity and 
rights of the house to which they belong would seem to require, 
that in such cases, as in others of offences against a coordinate 
branch, the ptmishment should be inflicted by their owm house. 

945. When an order has been made for the attendance of -wit- 
nesses, a transcript of it authenticated by the clerk of the house 
must be served upon them by the proper officer. If a witness is in 
or near the place where parliament is sitting, the order is served on 
him, that is, given to hun personally ; if at a distance, it is forwarded 
to liim by the sergeant-at-anns by post, or, in special cases, by a 
messenger.^ 

1 May. 309, 310; J. of S. IV. 259; J. of H. « Hat?ell, HT. 21. 

1-lth Cong. l.<t Sejs. 637; J. of S. loth Cong. « J. of S. 22d Cong. Ist. Sess. 370. 

2d Sess. 195 ; J. of H. loth Cong. 2d Se*s. 216 ; < Comm. Jour. X. 325 ; May, 311. 

/. of S. 14th Cong, 1st Sess. 410. ' May, 306, 307. 



376 LEGISLATIVE ASSEMBLIES. [PaKT V. 

946. If a witness upon whom an order for his attendance has 
been personally served, is guUty of disobeying the order ; or if one 
absconds for the purpose of preventing the service of the order upon 
him ; such delinquent witness is then ordered to be taken into cus- 
tody, by the sergeant-at-arms or other proper officer. If, however, 
there is reason merely to believe, that a mtness is purposely keep- 
ing out of the ^way to avoid service, the practice is, in the first 
instance, to direct that the service of the order at his house shaU be 
deemed good service. This precaution is observed, of course, in 
order to guard against the danger of taking a witness into custody, 
who may be innocent of any intentional contempt of the house. 
But, where the cncumstances of the case are such as to preclude 
all reasonable doubt, as to the intention of the witness, he may be 
ordered into custody at once. Thus, where it appeared by the 
report of a committee, that two persons who w^ere ordered to attend 
the committee had not attended ; but that, having attended on the 
day previous, agreeably to order, they had afterwards purposely 
kept out of the way, in order to avoid being served with the order 
for their attendance on the day in question, they were ordered 
forthwith to be taken into the custody of the sergeant-at-arms.^ If 
after such service of the order, the witness should not attend, he is 
then ordered (sometimes not immediately but after a short interval) 
to be taken into custody .^ 

947. When witnesses abscond, or keep out of the way, so that 
the officers of the house are unable to take them into custody, in 
pursuance of the orders of the house, the last step taken is to 
address the crown to issue a proclamation, offering a rew^ard for 
their apprehension ; ^ the consequence of which usually is, in a very 
short time, the voluntary surrender of the d ehnquents, into the cus- 
tody of the officer. 

948. If a person, whose testimony is desired as a witness, is then 
in the custody of the keeper of one of the public prisons, either for 
debt or other^vise, an order is made requiring the keeper of such 
prison to bring his prisoner in custody to the house or the commit- 
tee, to be examined.^ The order may eiiher requu-e the prisoner to 
be brought up, on a day named, or from day to day, or as often as 
the committee may require. The order is carried into effect by 
means of a speaker's warrant.^ Where a witness is in the custody 

1 Coram. Jour. XXXV. 323, 324. * May, 306, 307; Coram. Jour. XIX. 514; 

2 May, 306, 307. Comra. Jour. XXXV. 78, 379. 

8 May, 308, 309. 5 Coram. Jour. LXIV. 55, -^^ 71 72. Where 



Chap. IV.] witnesses. 377 

of the sergeant-at-arms, he is to be brought in custody to the house, 
or committee, in the manner above mentioned, in pursuance of an 
order of the house, without any other warrant.^ 

949. When a person, whose testimony is desired by one house, 
is in the custody of the other, the practice is for the former, by mes- 
sage, to request the latter to direct their officer to attend with the 
witness in custody, at such time or times as his attendance may be 
desired by the house or a committee, for the purpose of his being 
examined.^ 

950. Witnesses that have been taken into or are in custody, for 
disobeying the order of the house, for their attendance, or for keep- 
ing out of the Avay, or absconding, are usually committed to New- 
gate, by way of punishment for their offence ; from whence, whilst 
thus undergoing their punishment, they are brought in custody to 
the house, or before a committee, to give their evidence, w^henever 
their testimony is wanted ; the speaker's warrant being ordered to 
be issued for that purpose. 

951. If it appear, ho^vever, to the house, that a Avitness, who has 
thus been taken into custody, has not been guilty of any intentional 
contempt, — as where a witness neglected to attend in obedience to 
the order of the house, by reason of infirmity, being eighty-six years 
of age, or for want of means to defray his necessary expenses,'^ — 
such witness may be discharged out of custody. So, it is pre- 
sumed, a witness who has intentionally disobeyed or set at defiance 
the order of the house, and has been sentenced to imprisonment as 
a punishment therefor, may, upon submitting himself to the author- 
ity of the house, be discharged from such custody, provided the 
house should be satisfied that he would attend and submit himself 
to examination.^ On one occasion, certain witnesses, who had 
been taken on a speaker's \varrant, were freed from restraint, on 
recognizing, without surety, in the sum of one thousand pounds 
each, to appear from day to day, " and testify at such times, as the 
house or the committee for the business shall require." ^ 

952. The mode of obtaining the attendance of witnesses before 
an election committee is regulated chiefly by the statute provisions 
relating to the trial of controverted elections. When an election 



there are two or more witnesses in the same ^ Comm. Jour. XXI. 926. 
prison, whose testimony is wantea at the 3 Comm. Jour. LXXIV. 170, 181, 182. 
same time, they may all be included in * See Hans. (1), XX. 845, 846. 
the same warrant. — Comm. Jour. LXIV. 71, ^ Comm. Jour. II. To what extent this preo- 

f2. edent has been followed does not appear. 
» Comm. Jour. LXIV. 55, 60, 71, 72. 



378 LEGISLATIVE ASSEMBLIES. [PaRT V 

petition is presented and received, there is a general order made, 
that the speaker issue his waiTant for such persons, papers, and 
records, as shall be thought necessary by the several parties, on the 
hearing of the matter of the petition. In pursuance of this order, 
all witnesses intended to be examined before an election committee 
are summoned, before the appointment of the committee, by a 
speaker's warrant issued on the application of the parties, and with- 
out any special order of the house in each case. Disobedience to 
a speaker's warrant, issued by vu-tue of this general order, is punish- 
able in the same manner as disobedience to a special order of the 
house. After the appointment of an election committee, the wit- 
nesses are summoned by orders signed by the chairman.^ 

953. Strangers not being allowed to enter the room, in which 
the house is sitting, until regularly caUed in, the proper place for 
witnesses summoned to attend the house, or a committee of the 
whole, to be in attendance, is in the lobby, or in some other room 
if there is one, appropriated for the purpose. Witnesses, ordered 
to attend a select committee, are bound to attend at the place 
specified by the order ; v^hich may be either one of the committee 
rooms, or such other place without the precincts of the house, as 
the committee having authority to adjourn from place to place, 
have fixed upon to sit in.^ 

954. When a witness, by reason of sickness or infirmity, is 
unable to attend, and this fact is made knoM-n to the house, 
the examination of such witness may be taken at the place 
where he is, by a committee or certain members appointed by the 
house for the purpose. If the evidence is wanted before a select 
committee, the house may either authorize the committee to take 
the examination, or to appoint certain of its own members for that 
purpose, or the house may appoint certain members not of the com- 
mittee for the same purpose. Such examination may either be 
taken upon interrogatories, prepared beforehand, and agreed to by 
the house or committee ; or it may be upon interrogatories framed 
at the time by the members appointed to conduct the examination. 
In either case, the manner of conducting the examination may be pre- 
scribed, as, for example, that it shall be in \\Titing and signed by the 
witnesses, or that it shall take place in the presence of the parties ; 
or it may be left to the members appointed to conduct it without 
any particular instructions, in which case, the examination should 
be conducted according to the ordinary com-se of proceeding. It is 

1 May, 307, 308. • a Comm. Joui. XXI. 24. 



Chap. IV.] witnesses. 379 

competent, for the house, also, if it thinks fit, to give a committee 
general power, " if any of the witnesses shall be sick, or hindered 
by other impediment, that they cannot come to them," to take the 
examination of such witnesses by certain of their own members.^ 



Section III. Of the Examination of "Witnesses. 

955. The principal difference between the two houses of parlia- 
ment, in respect to the examination of witnesses, is, that in the 
house of lords they are sworn and give their evidence under oath ; 
whereas, in the house of commons, they testify without any such 
sanction. In the former, every witness is sworn at the bar, whether 
he is about to be examined by the house, by a committee of the 
whole house, or by a select committee ; ^ and, if, while the house is 
in committee, it becomes necessary to examine a witness who has 
not been sworn, the house is resumed for the purpose of swearing 
the witness, and then again immediately put into the committee.'^ 

956. The house of commons has not, at any period, except 
during the commonwealth,'* claimed, much less exercised, the right 
of administering an oath to witnesses ; not even in cases of privi- 
lege, or in cases of controverted elections,^ where its right of 
judicature was acknowledged, and on questions upon which it 
was admitted to be the sole court competent to determine.'^ But, 
from what anomalous cause, and at what period, the power of 
administering oaths, which, by the laws of England, has been con- 
sidered essential to the discovery of truth, and which must have 
been inherent in the high court of parliament, has been retained by 
one branch of it, and severed from the other, cannot now be satis- 
factorily established. The two houses, in the course of centuries, 
have appropriated to themselves different kinds of judicature, but 
the one has exercised the right of administering oaths without 
question, while the other, except as already mentioned, has never 
yet asserted it." 

957. But, though the commons have never undertaken to exer- 
cise this right, except during the brief period of the commonwealth, 

1 Hatsell, II. 138, n.; Comm. Jour. I. 849; the trial of controverted elections, which was 
Same, II. 49, 194. introduced by the Grenville act, the comrait- 

2 May, 30(3, 312. tee appointed to try an election case is author- 
' Pari. Reg. XIII. 324. ized to examine witnesses on oath. But no 
* See Comm. Jour, VI. 214; Same, VII. such power is thereby conferred on the house. 

287. 6 Hatsell, II. 158. 

5 According to the system of proceeding for ^ May, 313. 



380 LEGISLATIVE ASSEMBLIES. [PaRT V 

their experience of it then seems to have rendered them evidently 
alive to its importance, and, for nearly a century after the restora- 
tion, they resorted to various expedients in order to supply the 
defect in their ow'n authority. In the year 1678, on the breaking 
out of the popish plot, it v/as thought expedient, in order to give an 
appearance of greater weight to the testimony of the v.dtnesses in 
that business, to direct certain of their own members, who hap- 
pened to be justices of the peace for Middlesex and Westminster, 
within the limits of which parKament was sitting, to withdraw and 
take the evidence on oath. This practice was manifestly irregular, if 
not illegal, as justices of the peace are only authorized to administer 
oaths in the investigation of matters "within their own jurisdiction, 
and regularly before them.^ Another mode, equally m-egular, 
which was occasionally, resorted to, was to call in the assistance of 
one of the judges of the common law courts.^ The commons also 
sought to aid their own inquhies by examinations on oath at the 
bar of the house of lords, and before joint committees of both 
houses ; in neither of which expedients, were they supported by the 
lords. 

958. All these methods of obtaining the sanction of an oath to 
evidence taken at their instance T\^ere implied admissions, on the 
part of the commons, of their own want of authority. But, in 
1715, the practice was introduced of empowering justices of the 
peace for Middlesex to examine witnesses " in the most solemn 
manner," that is, on oath, before committees of the house; and, in. 
1720, when a committee was appointed to inquue into the affaus 
of the South Sea Company, witnesses Avere ordered to be examined 
before theiu in the most solemn manner, without any mention made 
of the persons by whom they were to be sworn. This practice, by 
which the commons seemed to assume a right to delegate to others 
a power which they had not claimed to exercise themselves, pre- 
vailed until about the year 1757 ; since which time, the examina- 
tions of witnesses, in all the great and important inquiries that have 
taken place, have been conducted without the sanction of an oath.^ 
In this country, legislative assemblies have no authority, unless it 
is conferred upon them by law, to administer oaths to witnesses. 
This power is very generally conferred. 

959. Witnesses, as aheady remarked, may be examined in both 



1 Black. Coram. IV. 137. house of congi-ess. J. of H. m. 71, 154, 155, 

' This method ■was practised in the lower 158, 165. 

3 Hatsell, II. 160; May, 314, 315. 



Chap. IV.] witnesses. 381 

branches, either before the house itself, or before a committee of the 
whole, or a select committee. The mode of proceeding, except in 
some few unimportant particulars, being substantially the same in 
both houses, it will be sufficient to describe the usual course in the 
house of commons ; noticing, if deemed of importance, such differ- 
ences as exist between the two houses, in reference to any particu- 
lar proceeding; and pointing out also the different forms of pro- 
ceeding which take place, according as the examination is before 
the house, or a committee of the whole, or a select committee. 

960. When an inquiry has been resolved upon, in which wit- 
nesses are to be examined before the house itself, or a committee 
of the whole house, and the time appointed for the pm-pose has 
arrived, the house proceeds with the usual formalities to the busi- 
ness which is the order of the day ; and the witnesses as they are 
wanted are then called in, on motion and question taken, if neces- 
sary, by the sergeant-at-arms, or, if in custody, brought in by him or 
the officer in whose custody they are, and placed at the bar for 
examination.^ When a motion is made for calling in a witness, it 
may either be general, or may specify the subject upon which it is 
proposed to examine him.'^ 

961. When witnesses are thus called or brought in to be examined, 
either before the house, or a committee of the whole, the rule of 
proceeding requires that the bar should be down ; which is not the 
case, when a select committee, as, for example, the committee of 
privileges, are sitting in the house, notwithstanding such committe.; 
may be so constituted, that all the members of the house are at 
liberty to attend and participate in the proceedings.^ 

962. When a witness attends in the custody of the sergeant-at- 
arms, it is in strictness requisite, as it is where one who is accused 

1 When the forms of proceeding, if strictly with the inquiry at the time assigned may be 
observed, require a motion to be made, sec- opposed, on the usual motion for reading the 
onded, and proposed, the subject thus brought order of the day; or if the inquiry is pro- 
forward is always open to debate. When, ceeded in, a motion may be made, before any 
therefore, it is proposed in the house, that of the witnesses are called in, that the evi- 
witnesses be directed to attend for the pur- dence about to be produced be not received 
pose of a particular inquiry, the propriety or (Hans. (1), XII. 855); or when a motion is 
expediency of going into that inquiry, whether made for calling in a witness, it may be op- 
it be a principal one or incidental, is open to posed; or when a witness has been called in 
qiiestion and debate, on the motion for the without opposition, any member may request 
attendance of the witnesses ; although it may him to withdraw, and then oppose the motion 
already have been debated and decided, on for calling him in, (Same, 847); or objection 
the motion for the inquiiy, or for the appoint- may be made to the inquiiy, when a question 
ment of the committee for the purpose. If, is put to the witness. 
however, the witnesses have been ordered to ^ Parl. Reg. XII. 354, etc. 
attend, and are in attendance, the proceeding ^ Comm. Jour. H. 26; HatseU, H. 140. 



382 LEGISLATIVE ASSEilELIES. [PaET V 

of some ofFenca against the house is brought in to be examined, or 
sentenced, or discharged, that the sergeant should stand by the wit- 
ness with the m.ace on his shoulder.^ When a -u-itness is thus 
standing at the bar, the speaker alone manages, and no member is 
at liberty to speak, not even for the ptu-pose of suggesting questions 
to the chair ; and, consequently, in such a case, it is necessary, that 
the questions to be proposed to the A\T.Tness should either be pre- 
^dou5ly reduced to "UTiting by individual members, or, which is the 
more common practice, should be settled beforehand in the house, 
upon the report of a committee for the purpose or otherwise, and in 
the possession of the speaker before the prisoner is brought to the 
bar.2 But this strictness of form, as Hatsell suggests, may A^ery 
well be, and, in point of fact, usually is, dispensed with; and, 
when this is the case, the examination is conducted in the ordinary 
manner. 

963. AAlien a ^'itness, not in the custody of the sergeant, or in 
custody vrithout the mace standing by him, is at the bar to be 
examined, the regular course of proceeding requires, that the neces- 
sary questions, (except such as are put by the speaker himself of 
his o"^'n motion.) should be proposed to the chair by the individual 
members (which may be done whilst the witness is standing at the 
bar,) and should then be put by the speaker to the T^-itness.'^ The 
question, thus suggested, should regularly be put by the speaker in 
the form in ^^hich it is proposed ; though, if the speaker thinks the 
form objectionable, it is the practice for him to alter the phrase- 
ology, and to put the question in what he deems the proper form ; 
but, still, if the member proposing the question objects to the 
change, and insists upon its being put in the original form, the 
sense of the house must be taken as to the terms in which the 
question shall be put.^ 

964. It is usual, however, for the sake of convenience, to dis- 
regard the strict rule as stated in the preceding paragraph, and to 
allow the members themselves, standing uncovered in then- places,'^ 
to put questions directly to a ^dtness, without the intervention of 
the speaker ; though this is a practice which, according to Hatsell, 
is irregular, and seldom fails to produce disorder.^ Where mem- 

1 'When the mace lies npon the table, this be made. By ilr. Speaker Onslow, Hatsell, 

constitntes a house ; when under, it is a com- U. 141, n. 

mittee ; when the mace is out of the house, no - May, 317 ; Hatsell, H. 142, n. 

business can be done ; when from the table, ^ Hatsell, II. 141. 

and upon the sergeant's shoulder, at the bar, * Pari. Eeg. XI. 188, 189. 

the speaker only manages, and no motion can = Hansard (2), XXIV. 225, 226. 

6 HatseU, H. 141; Pail. Eeg. XI. 233, 234. 



Chap. IV.] witnesses. * 383 

bers are thus allowed to conduct the examination of a witness, it is 
still supposed, and should be constantly borne in mind both by the 
member examining and the witness, that the questions are sug- 
gested to the speaker by the member, and that they are put to the 
witness by the speaker by the authority and as the representative 
of the house.i The answers of the witness should therefore be 
returned to the chair, that is, to the house ; and they cannot, with- 
out disrespect to the house, be addressed personally to, or contain 
remarks upon, the member by whom the questions are in fact pro- 
pounded ; although the questions should be improper, and tend to 
provoke personality.^ The only course, proper for a witness to pur- 
sue, in such a case, Avould be either to answer the question substan- 
tially, and without regard to its form, or to decline answering and 
to refer it to the house for their consideration. 

965. When an inquiry is instituted, and an examination of wit- 
nesses undertaken by the house, in its inqtdsitorial capacity, it is 
customary for the member, on whose motion or suggestion the in- 
quiry has been engaged in, or for some of the meriibers voting 
with him for the inquiry, to take the lead in the examination of the 
witnesses, by making the proper motions for calling them in, and 
either by suggesting or putting such introductory questions to each 
witness, as may be necessary to bring forward the facts relating 
to the subject of the inquiry which are within his knowledge; or, 
in other words, to examine the witnesses in chief. On the other 
hand, it is customary for those members who are opposed to the 
inquiry, or to the purpose which is to be effected by it, to cross- 
examine the witnesses. In fact, when the house is divided in 
opinion, in reference to the purpose of an inquiry, the leading 
members arrange themselves, and procure the attendance of wit- 
nesses to be ordered, on the one side and on the other, and examine 
and cross-examine the witnesses, very much after the manner of 
opposing counsel, in the trial of a cause in any of the ordinary 
courts of justice.^ 

966. When the house is proceeding in its judicial capacity, or 
the inquiry relates wholly to a matter of private interest, it is the 
practice to allow the parties to be heard and to introduce and ex- 
amine witnesses by themselves or their counsel. This is a privilege 
usually granted by the house upon the petition of the parties, but 
sometimes on motion merely. When this privilege is accorded, 
the inqmry is then conducted by the parties or their counsel, pre- 

1 Cavendish's Debates on Canada, 170, 171. ^ Hansard (1), XXXIX. 976. See also the 
* Cav. Deb. Can. 170. inquiry concerning the duke of York. 



384 LEGISLATIVE ASSEMBLIES. [PaKT V. 

cisely in the same manner, as if they were before any other judicial 
tribunal. Sometimes parties are allowed to be heard and to exam- 
ine witnesses so far as their private interests are affected, for oi 
agaiiist a measure of public concern ; and, in such cases, they are 
to be heard and to examine witnesses to the extent allowed them, 
in the same manner, as if thek private interests were alone con- 
cerned. 

967. In regard to the phraseology of the questions which are 
put to a witness, and the language of the answers returned by him 
while under examination, it is to be observed, on the one hand, 
that the witness is in the protection of the house ; that no question 
ought to be permitted to be put to him which is couched in dis- 
respectful terms ; and that no insulting or abusive language or 
conduct towards him ought to be allowed ; ^ and, any member,^ 
counsel, or party, who in examining a witness should insult or 
abuse him, would subject himself to the censure and punishment of 
the house. On the other hand, it is the duty of a witness to an- 
swer every question in a respectful manner, both towards the house, 
and towards the member, party, or counsel, by whom he is exam- 
ined.'^ If a witness, forgetful of his duty in this respect, gives his 
answer in an indecorous or disrespectful manner, the usual course 
is for the speaker to reprimand him immediately, and to caution 
him to be more careful for the future.'^ If the offence is clearly 
manifest, the speaker will proceed at once to reprimand and caution 
the offender ; if not, the witijess may be dii'ected to withdraAV, and 
the sense and direction of the house may then be taken upon the 
subject.'^ 

968. In regard to the course of inquiry, a distinction must be 
made, corresponding to that by which the different subjects of in- 
vestigation are distinguished, namely, between inquisitorial pro- 
ceedings, amd those which are judicial and relate to private individ- 
uals. In the former, the utmost latitude, both as to the form and 
the subject-matter of the questions proposed, is allowed ; the house 
being governed only by its own discretion, — having reference to 
the public interest, — in permitting or restraming the course of in- 
quiry. The rule is thus stated by Mr. Wynne : " It was clear, that 
the house was at liberty to exercise the fuUest discretion upon 
every question which it was proposed to ask of any witness at 
their bar. In a court of justice, the parties had the right to put any 

1 Pari. Eeg. XL 232, 233, 234. * Hans. (1), XL 662. 

2 Pari. Keg. XIII. 232, 233. ^ Hans. (2), IX. 75. 
8 Cav. Deb. Can. 170; Same, 170, 171. 



Chap. IV.] witnesses. 385 

question they chose. The judge had only to determine -u hether it 
was a legal one, and if it was, he could not refuse to admit it. In 
that house, the case was widely different. There the questions 
were those of the whole body, though proposed by an individual 
member : there could be no obligation upon any one to consent to 
a question being put, which he conceived to be irrelevant, imma- 
terial, or in any way inexpedient for the public interest." ^ In the 
course of the inquiry relative to the conduct of the duke of York, 
Mr. Whitbread said that, " The committee were not fettered by 
settled forms or principles of evidence, as was the case in the courts 
below. If once such a limit was imposed upon the investigations 
of the house of commons, there was an end to the inquisitorial 
power of parliament." ^ And Sir Samuel RomiUy said that, " The 
object was very different from that of courts of justice, and therefore 
the house could not be bound by the same ties." ^ 

969. In reference to judicial and private proceedings, it may be 
stated generally, that the two houses of parliament consider them- 
selves governed by the same rules of evidence, which prevail in the 
ordinary courts of justice, so far as they are applicable, or by analo- 
gous rules, according to the nature and subject of each particular 
inquiry.^ In applying these rules, the spirit rather than the letter, 
and the substance rather than any technical form, will, of course, 
be regarded.'^ 

970. The following cases wiU serve as examples of the mode in 
which witnesses and evidence are dealt with, in inquiries of a pri- 
vate character. On a hearing at the bar of the lords, against a 
private bill, a witness being called, who had signed a petition 
against the bill, it was stated by Lord Mansfield to be a rule of 
parliament, that no person was competent to testify as a witness in 
a hearing upon a private bill, who had signed a petition against 
the bill, either in whole or in part ; not because he was a party, nor 
because he might have an eventual interest in the fate of the bill, 
bvit simply because he had signed a petition against it ; ^ and, in the 
house of commons, a witness against a private bill was rejected as 
incompetent, on the ground that he had distributed to members of 

1 Hans. (2). IX. 493. ner of proceeding of the house in its inquisi- 

2 Hans. (1), XII. 585. torial capacity. 

* Hans. (1), XII. 853. This inquiry, which * A fundamental rule is, that witnesses can 

was considered as altogether of a public char- only be examined to matters and things which 

acter, and was conducted entii-ely without are relevant to the allegations in the petition; 

the aid of counsel, and in the absence of the Comm. Jour. XLI. 839; Same, L. 176. 

individual whose official conduct was in- * Hans. (2), V. 152. 

Tolved, affords a good illustration of the man- * Pari. Reg. XIX. 336, 337. 

33 



386 LEGISLATIVE ASSEMBLIES. [PaRT V. 

the house a printed paper, on behalf of himself and others, against 
the biU ; ^ and another on the ground that he had subscribed a sum 
of money in support of one of the petitions against the bill ; ^ so 
persons who were petitioners against an election, being offered as 
witnesses to controvert the election, and objected to on the ground 
that they had signed the indenture of return, w^ere rejected.'^ 

971. In reference to judicial proceedings, in the w^ay of legisla- 
tion,^ the bin of pains and penalties, on w^iich the trial of the queen 
took place, affords a good example. In this case, aU the rules of 
evidence, by w^hich com-ts of justice regulate their proceedings, 
were adhered to.'^ So on the motion for an address to the crowai 
for the removal of JVIr. Justice Fox from office, on w^hich wit- 
nesses w^ere examined, and the inquiry conducted by counsel on 
both sides, a witness being called to testify to the charges in the 
address, and being objected to on the ground that he was one of 
the petitioners against the judge, the house considered the wdtness 
competent, by analogy to the practice of the judicial courts, in 
which the evidence of a prosecutor is always admissible.^ 

972. The i7v\'o houses pay that respect to each other's proceed- 
ings, that a witness, w^ho has been examined in one house, wall not 
be allowed, on his examination in the other, to testify to w^hat 
passed on his first examination ; " and this rule seems applicable to 
every kind of inquiry, whether public or private. 

973. AVhen an examination takes place before the house, or a 
committee of the whole house, wdtnesses are usually required to 
stand at the bar micovered, while giving their evidence; unless, 
from fatigue or sickness, or other cause, they should be unable to 
stand, in which case, they are aUow^ed to sit.^ But this rule does 
not apply to members of the house, w^ho are alw^ays examined in 
their places, standing (unless sick or infirm) and uncovered ; nor to 
peers, lords of parhament, the judges, and the lord mayor of Lon- 
don, w^ho, when attending as wdtnesses, have chairs placed for them 
wdthin the bar, and are introduced by the sergeant-at-arms. Peers 
sit down covered, but rise and answer all questions uncovered. 
The judges and the lord mayor, though provided with chairs, and 
informed by the speaker that there are chairs to repose themselves 
upon, do not sit, but only rest wdth their hands upon the chair 
backs.^ 

1 Comm. Jonr. XXXV. 382. 8 Hans. (1), V. 167. 

2 Comm. Jour. XXXV. 589. "> Comm. Jour. XXXH. 113. 
8 Comm. Jour. XVIII. 181. » Hans. (1), XII. 436, 985. 

* See Pari. Eeg. Vm. (2), 291. 'May, 317; HatseU, H. 149. The latter 

^ Hans. (2), V. 152. author, who minutely describes all these forms, 



Chap. IV.] witnesses. 387 

974. According to the strict rules of proceeding, as already- 
explained, there are three modes of examining witnesses, namely : 
firsts upon interrogatories previously agreed upon by the house and 
put to the witness by the speaker ; ^ second, upon interrogatories 
framed at the time of the examination by the speaker, or suggested 
to him by individual members, and put by him to the witness ; and, 
third, upon interrogatories framed at the time and put duectly to 
the witness by individual members. 

975. In regard to interrogatories of the first kind, — although 
optional with the house to proceed with the inquiry or not as it is 
to proceed with every order of the day, — it would seem, when the 
examination has once been entered upon, that it is Ihen too late 
for particular interrogatories to be withdrawn, or to be objected to 
in the usual way on the part of the members ; yet it is doubtless 
competent for the house to expunge a particular interrogatory, if 
it thinks proper, or to direct that it shall not be put. 

976. When the second mode is adopted, the theory of the pro- 
ceeding supposes, that the questions as they are propounded to the 
witness are agreed upon and sanctioned by the house, though 
without the formality of a motion and question ; in the same man- 
ner, in fact, as if there had been a motion made that the particular 
question, stating it, be put by the speaker or chairman to the wit- 
ness, and the house on question had agreed to the motion ; and, it 
seems, that it is the right of each individual member to require, that 
every question shall be agreed upon and put in this manner.'-^ 

977. Where the strict form is thus observed, every motion for a 
question stands precisely in the situation of all other motions, sub- 
ject to be withdrawn by the mover with or without the leave of the 
house, and to be disposed of by amendment or otherwise. When 
agreed to by the house or committee, it is no longer the question of 
the member by whom it was moved, and subject to his control, but 
of the house or the committee, by whom it may of course be 
expunged or ordered not to be put. 

978. When the questions are suggested by individual members, 
and put to the witness by the speaker, without the formality of a 
motion and question, the proceeding is by general consent, which 
is of course presumed so long as no one objects. Until, therefore, 
the question has been actually put to the witness by the speaker, it 

does not acquaint us with the reasons or ori- called, the clerk was ordered to stand by him, 

gin of this somewhat curious distinction be- and repeat the questions that wera put to 

tween sitting on, and reposing upon, a chair. him. Hans. (1), IX. 974. 

1 A witness, who was very deaf, being ^ Hans. (2), IX. 524, 526. 



388 LEGISLATIVE ASSEMBLIES. [PaET "V 

is undoubtedly competent to the member suggesting the question 
to wiihdi-aw it/ or for any other member to object to the ques- 
tion, and to require it to be agreed upon and put according to the 
regular form of proceeding. 

979. Where the usual practice is adopted of allowing the mem- 
bers to put their questions directly to the witness, without being 
previously agreed to on motion, or even suggested to the speaker 
to be put by him, the whole proceeding is by general consent ; and, 
consequently, may be objected to by any member, and the strict 
rule enforced, at any time before the question is actually answered 
by the ^^dtness. Until that time, therefore, the member proposing 
the question may "v^dthdraw it, or it may be objected to by any 
other member.^ 

980. If, while a witness is under examination at the bar, any 
member mshes to address the house, or to make a motion, either 
in reference to the business in hand, or to any other subject, or if it 
becomes necessary to take the sense of the house on any matter, 
the witness is directed to ^\-ithdraw,'^ without any motion or vote 
for the purpose, but simply in pm-suance of the right of each indi- 
vidual member to have the house cleared of strangers, whenever he 
pleases.^ "When the occasion for the withdrawal of the witness is 
at an end, a motion must then be made, and a question put for 
calling him in again. The ^^^.thdrawal of a witness is usually 
effected by individual members calling out to withdraw. The 
more proper course is for the speaker, at the request of some 
member, or on his own suggestion, to direct the T\itness to with- 
draw.'' , 

981. Where the questions, upon wMch a witness is to be exam- 
ined, are settled by the house, in either of the modes above 
described, every member has an opportunity, before a question is 
put, to object to it, and to have his objection, considered, and the 
whole matter decided by the house. Where the members are 
allowed to examine the witnesses dh-ectly, without the intervention 
of the house or the speaker, other members have no opportunity to 

1 Hans. (2), XI. 523. and parties, actually to withdraw from the 

2 The rnles of proceeding, as laid down in house, and retire into the lobby, or witnesses 
these paragi-aphs, seem to be the fair result of room, in all cases, but only to withdraw from 
what is said in debate, and of the proceedings the bar a few feet. Hans. (1), VHI. 1063, 
in the examination of witnesses, in the several 1064. 

inquiries of public importance, i-eported in * Cav. Deb. I. 128, 129, 131; Cav. Deb. Can 

the pubhshed debates. 123. 

' It does not seem to be the practice, in » Cav. Deb. Can. 123. 
modem times, to require witnesses, counsel, 



Chap. IV.] witnesses. 389 

object, until the questions are actually propounded. Questions are 
usually objected to by members for much the same reasons with 
those offered by parties or counsel, as, for example, that the ques- 
tion is irrelevant,^ or that the mode of interrogation is improper,^ or 
that the question relates to mere matter of opinion,-^ or hearsay .* 
But members are not, of course, confined to objections of this 
description. When questions are thus objected to, the witness is 
withdrawn, and the house proceeds to consider the matter, either 
formally, upon some appropriate motion being made, as that the 
speaker put the question, or that the question be not put, or in an 
informal manner. When the house has come to some conclusion 
upon the subject, the witness is again called in and the examina- 
tion proceeds. 

982. Whatever form of examination may be adopted, the proper 
time for a witness himself to object to a question, is when it is put 
to him. When a witness is unwilling to answer any question, he 
should state the reasons why he declines, or desires to be excused 
from answering, and should respectfully appeal to the chair, whether, 
under the circumstances, or for the reasons stated by him, he ought 
to answer.^ He is then directed to withdra^v, and the matter is 
considered by the house, whether and in what form the question 
shall be answered. When the point is settled, the witness is 
recalled, and the speaker informs him, that it is or is not the pleasure 
of the house that he should answer the question.'' The same pro- 
ceedings take place when the house is in a committee of the whole. 
When the decision is, that the question shall be answered, and the 
witness is recalled for that purpose, the speaker or chairman informs 
him, that he wiU be entitled to the protection of the house, against 
the consequences of giving his testimony, and that under such 
protection, he is bound to answer all questions which the house or 
committee should see fit to put to him.'^ 

983. A witness cannot excuse himself fi-om answering, on the 
ground that he may thereby subject himself to a civil action, or 
expose himself to a criminal prosecution,^ or because he has taken 
a judicial oath, as a grand-juror, for example, or a voluntary oath, 
as a freemason or an orange-man, not to disclose the matter about 

1 Hans. (1), Xn. 402. i Hans. (2), XVIII. 974. 

* Hans. (1), xn. 277. * In the house of lords, there appears to be 
' Hans. (1), XII. 589. some exception to the general rule with refer- 

* Hans. (1), XII. 584. ence to questions of this des sription. See 
6 Hans. (1), XII. 396, 478. post, § 1005. 

•Hans.(l), XII. 543,590. 

33* 



390 LEaiSLATIVE ASSEMBLIES. [PaET V. 

which he is required to testify ; ^ or because the matter was a 
privileged communication to him, as where an attorney is called 
upon to disclose the secrets of his cKent;^ or on the ground, 
that he is advised by counsel, that he camiot do so, \\athout in- 
curring the risk of criminating himself, or exposing himself to a 
civil suit."^ 

984. When a question has been propounded to a T\T.tness, with- 
out objection, or, if objected to, has been directed by the house to 
be put or answered, it is then the duty of the \\dtness forthwith to 
answer it du-ectly, plainly, fully,^ and truly, according to the best of 
his knowledge,-5 and in a respectful manner, both towards the house 
and the members individually. If the witness appears to be un- 
mindful or ignorant of his duty, or manifests a disposition to evade 
its performance, it is the business of the speaker to admonish him,^ 
that it is his duty to answer the question, or to answer it directly, 
or fuEy, or truly, or to conduct himself respectfully,'' as the case 
may be ; and, if necessary, to inform the witness, that the house 
is armed wdth power to enforce obedience to its commands, and 
to punish him with great severity for any disobedience, misbehavior, 
or contempt.^ 

985. Witnesses are called in, one at a time, on motion and ques- 
tion, as they are wanted, and withdraw by the du-ection of the 
speaker, when they have gone through with their evidence. It is 
not in strictness regular for any of the witnesses to remain in the 
house during the examination of any other witnesses ;9 but this 
rule is dispensed with, whenever it is necessary to confront two or 
more ^\T.tnesses together ; ^'^ in which case, the witnesses may be 
called in to give their evidence in the first instance, in each other's 
presence, or, after ha^dng testified, may be examined over again, in 
the presence of each other, to the same subjects. 

986. In respect to the order, in which witnesses are to be 
examined, it appears to be customary to conform to the general 
practice of com-ts of justice, so far as that practice is applicable, 
subject to such changes and modifications, as the convenience of 
the house or of the members managing the examination, or of the 

1 Hans. (2), IX. 113; Same, 119, 120; Same, 6 Hans. (1), Xn. 450, 831. 

493. f Hans. (1), XH. 538, 542, 600; Same, XL 

2 Hans. (2), X\Tn. 968, 969, 970, 971, 972, 642; Grey, IH. 102. 

973, 974. 8 Hans. (1), XH. 590, 591, 592. 

s'Hans. (1), VL 353, 359. » Hans. (1), IX. 23. 

* Hans. (1), xn. 542, 590. " Comm. Jour. XH. 83, 88; Same, X^TII. 

5 Hans. (1), xn. 283, 286, 449, 534, 541, 752-, Hans. (1), XH. 749; Same, (2-, IX. 487. 
542, 831. 



Chap. IV.] witnesses. 391 

witnesses, may require. Thus, the select committee on the aboli- 
tion of the slave-trade, in 1790, while hearing the witnesses in favor 
of the abolition, were du-ected by the house to take the testimony 
of two witnesses on the other side, who were under the necessity 
of soon leaving the kingdom ; it appearing to the house, that the 
examination of those witnesses, out of course, would not be attended 
with any inconvenience to the several petitioners in favor of the 
abolition, who were then in the course of examining their witnesses.^ 
So where a witness against a bill was under immediate orders for 
the East Indies, and might probably be obliged to leave before the 
party could examine him, in the ordinary course, the house allowed 
him to be examined in the then present stage of the bill.^ 

987. When an examination of witnesses takes place in the course 
of any inquiry, either before the house itself, or before a committee 
of the whole, or a select committee, it is necessary that minutes of 
the examination should be taken and preserved, that is, that the 
questions propounded, together with the answers of the witnesses, 
and the contents of letters and papers read in evidence, should be 
reduced to writing by the clerk of the house, or some other, usually 
a shorthand writer, appointed and employed by him for the pur- 
pose. When an examination takes place before a committee of the 
whole, the minutes of the evidence are usually presented to the 
house from time to time by its order and printed ; when before the 
house itself, the minutes being already in the possession of the 
house, there is no occasion for any such order. The minutes of the 
testimony are not entered on the journal, unless in the form of a 
report from the committee, or by the special order of the house ; but 
they are nevertheless essential to be taken and preserved, as the 
basis of the further proceedings of the committee, where their duties 
are not confined to the taking of the evidence ; and until the evi- 
dence is taken down no debate can occur consistently with order, 
nor can any motion be predicated, upon it, as it is to the minutes 
alone, that reference can be made for these purposes.'^ 

988. In select committees, which are generally made use of for 
inquiries in which the examination of witnesses is necessary, the 
evidence is taken down in shorthand, and, in the commons, printed 
daily for the use of the committee. A copy of his own examina- 
tion is also sent to each witness for his revision, with an instruction, 
that he is at liberty only to make verbal corrections, and not altera- 



1 Comm. Tour. XLV. 115. » Cav. Deb. Can. 120; Pari. Reg. XH. 34, 

a Comm. Jour. XXXIX. 143. 35, 36, 37. 



392 LEGISLATIVE ASSEMBLIES. [PaRT V. 

tions in substance, which can only be effected by a reexamination 
before the committee. Neither the members of the committee, for 
whose immediate use the minutes are printed, nor the witnesses to 
whom copies are sent for revision, are at Kberty to publish any por- 
tion of the evidence, until it has been reported to the house.^ 

989. In the ordinary mode of examination, it may happen, that 
a question, which, on being objected to, is decided to be improper 
or inadmissible, has been already inserted in the minutes. "VMien 
such is the case, the question is to be expunged.^ So an answer, 
which, properly speaking, is not evidence and ought not to have 
been received as such, may be expunged on motion and question 
for the purpose ; ^ and, in like manner, if a question is incorrectly 
taken down by the shorthand writer, it may be corrected, even 
after the answer has been given and taken down.'^ 

990. If in the course of the examination it becomes necessary to 
refer to the testimony previously given by any of the witnesses, as, 
for example, to reexamine the witness himself with reference thereto, 
or to confront him with other witnesses,-^ such evidence is to be read 
by the clerk from the minutes, and to be entered as read in the 
mmutes.^ 

991. If a witness desires to correct any thing in his evidence, he 
may be permitted to do so, on expressing his desfre to that effect 
before leaving the bar. Where some time has elapsed, the rule 
seems to be different. Li the examination before a committee of 
the whole, of the East India charges against Warren Hastings, 
Sir Ehjah Impey having testified on the 5th of February, applied 
to the committee when they next sat, which was on the 8th, to be 
called to the bar, for the purpose of dehvering in a written paper 
" containing an explanation and correction of some few of his 
answers when last examined." The committee, after debate, 
refused the request." K his examination has been closed, he must 
signify his -^^dsh through the speaker, or chairman, or some member,^ 
in order that a motion may be made, that he may be called in to 
con'ect a mistake in his evidence.^ If the witness is a member, he 
can of course, make the request for himself. The only proper time, 
for aUoA^dng a vtdtness to correct a mistake in his evidence, is regu- 

1 Mar, 304. v, B Hans. (2), IX. 487. 

2 Hans. (1), XIL 752, 858. s Hans. (1), XJl. 422, 572, 747, 748. 
s Hans. (1), XII. 673 ; Comm. Jour. XXXIX. " Pari. Reg. (2), XXI. 106, 107. 

143. 8 Pari. Reg. (2), XXL 106, 107. 

* Hans. (1), XIL 341. 9 Hans. (1), XIL 515. 



Chap. IV.] witnesses. 393 

larly when the house or committee is proceeding with the inquiry ; ^ 
so that if the inquiry has been closed, the only mode, in which a 
witness can be allowed to correct a mistake in his evidence, would 
seem to be by reviving and opening the inquiry for that purpose. 

992, The mode of examination, described in the preceding para- 
graphs, is what takes place when the inquiry is conducted by 
members. When the examination is conducted by the parties 
themselves, or by their counsel, questions are put by them to the 
w;itnesses, and objections are taken and argued to the house or the 
committee in the same manner as in the ordinary courts of justice. 
Members also may participate in the examination, and may put 
questions, and make objections, in the same manner as when the 
inquiry is conducted exclusively by them. Where parties and 
counsel are present at the examination, whether conducting it or 
not, they must all regularly withdraw, on both sides, whenever the 
course of proceeding requires the witnesses to be excluded. 

993. Some points of difference betw'een the form of proceeding 
in the house, and in a committee, require notice. When an exami- 
nation takes place at the bar of the house, the house has full power 
to proceed at once and to determine finally upon every emergency 
that may arise ; as, for example, to commit a witness, counsel, or 
party, for contempt, — to order the attendance of new witnesses 
forthwith, — or to proceed to any collateral inquiry they may think 
proper. In a committee, even of the whole, the case is otherwise ; 
as a committee has no power except what is specially confen-ed 
upon it by the house. Hence, a committee is not at liberty to 
punish for a contempt, or to take any other step out of the limits 
of the authority conferred upon it ; but only to report the special 
matter to the house, to be there considered and determined upon. 
Such special matter may be reported whilst the examination is pro- 
ceeding, or at its close, as may be necessary or convenient. A 
committee of the whole, if it reports specially, in the course of the 
examination, may make the report either when it reports progress 
at the close of its daily sitting, or, if necessary, it may rise and 
make the report immediately. In the latter caSe, when the report 
has been received, and the house has proceeded therewdth in such 
manner as it may think proper, the house again resolves into the 
committee, and the examination is resumed at the point where it 
was broken off. A select committee, if authorized to sit whilst the 
House is sitting, but not otherwise, may make a special report, in 

1 Hans. (1), Xn. 327. 



394 LEGISLATIVE ASSEMBLIES. [PaET V 

the same manner. A committee of the whole may also, it seems, 
when necessary in support of its own proceedings, give orders for 
the taking into custody of any person guilty of a contempt. Thus, 
when, in the course of the inquiry into the conduct of the duke of 
York, before a committee of the whole, it appeared that a person, 
mthin the precincts of the house, had been tampering with one of 
the witnesses in attendance, the committee rose, and the house was 
resumed, for the purpose of ordering the offender into custody ; but, 
in the proceedings which ensued the speaker stated, " that it would 
have been competent for the committee, in support of their own 
proceedings, to order the sergeant- at- arms to take into custody any 
person vvdthout delay. The first duty of the chairman [the com- 
mittee] would then have been to report progress, and when the 
person was actually in custody, to move that he be committed." ^ 

994. As aU the proceedings of a committee are ultimately to 
be revised by the house, it is competent for the committee, if it 
thinks proper, whUe an examination is proceeding, to ask the 
instruction of the house, by means of a special report, with refer- 
ence to the questions of evidence, which are within its authority 
to decide. On such a report being made, the house proceeds to 
consider the question proposed to it, and to instruct the committee 
agreeably to its request. Thus, where one of the members of a 
committee, to whom a private petition was referred, reported from 
the committee, " that they had dfrected him to move that the house 
will please to give directions, whether affidavits, taken in the planta- 
tions, can be read before the said committee or not ; " a motion was 
then made, that the committee have leave to read the depositions 
in question, which passed in the negative.^ So, where one of the 
members of a select committee acquainted the house, " that he was 
directed by the committee to report to the house the special matter, 
upon which a witness was, in the said committee, resolved to be 
an incompetent "^dtness," and he read the report accordingly ; it 
was thereupon, ordered, that it be an instruction to the committee, 
to admit the evidence of the witness in question, as a competent 
witness.^ 

995. A select committee may, also, in its report, present the 
questions of evidence which it has decided, in such a manner, as to 
enable the house to revise its decision thereon. In such a case, the 
committee reports the matter " as it appears to them," upon the 
evidence, together with a statement of the questions of evidence 

1 Hans. (1), XII. 461. s Comm. Jour. XXXIV. 202. 

2 Comm. Jour. XIU. 769. 



Chap. IV.] witnesses. 395 

decided. If the decision of the committee is not satisfactory to the 
house, the proper course is to recommit the report to the com- 
mittee.i 



Section IV. Of the Privileges of Witnesses. 

996. In order to enable persons, whose testimony is wanted 
before either house of parliament, or a committee, to give their 
attendance, and to testify fully and freely to all matters and things 
within their knowledge, certain privileges, analogous to those of 
members, are attributed to them. These privileges are of three 
kmds : first, freedom from arrest in coming, staying, and returning ; 
second, protection against the consequences of the disclosures, 
which tliey may make in their evidence ; and, third, protection 
against personal violence, or threatened injury, in consequence of 
their being witnesses. 



Article I. Freedom from Arrest, in coming, staying, and returning, 

997. This privilege, which is similar in its nature and extent to 
the analogous privilege enjoyed by members, is as much the privi- 
lege of the house itself, as of the persons who are more immediately 
the subjects of it ; or, as it was expressed in the resolutions of the 
commons, March 8, 1688, " it is the undoubted right of this house, 
that all witnesses summoned to attend this house, or any commit- 
tees appointed by it, have the privilege of this house, in coming, 
staying, and returning." ^ This privilege is of a twofold character : 
— first, it entitles witnesses to protection against the danger of 
arrest ; and, second, if arrested to be discharged. 

1. Protection. 

998. In order to entitle a witness to the protection of the house, 
it is not necessary that he should have been summoned by a party, 
or ordered by the house, to attend ; it is enough, if he is a material 
witness, and is willing and about to attend, or is in attendance, as 
such ; and that he desires to have the protection of the house. If 
a witness has been summoned to attend, in virtue of a summons 

1 Comm. Jour. XX. 679. See also Same, * Comm. Jour. X. 45. 
XXV. 133. Such a report is equivalent to a 
report in the alternative. 



396 LEGISLATIVE ASSEMBLIES. [PaRT V. 

issued by the house, or by a committee authorized to summon wit- 
nesses, on behalf of a party interested, or has been du-ected to 
attend by an order of the house, there can be no question, that he 
is entitled to the protection of the house, if he desires it. In other 
cases, it will be necessary to satisfy the house by proper evidence, 
that the witness is material, and is willing to attend. When, 
therefore, it is made satisfactorily to appear to the house, upon 
the petition of the party interested,^ or of the witness himself; 
or upon the statement of a member; or upon the report or 
application of a committee ; that a particular person is a ma- 
terial witness in some proceeding or inquiry before the house ; 
about to attend, attending, or returning; and is in danger of 
an arrest, unless he have the pri\Tlege of the house ; an order 
will thereupon be made, that such witness have the protection of 
the house, in coming, staying, and returning, in order to give his 
evidence.^ Sometimes a general resolution is agreed to, that all 
such witnesses as are necessary wdth reference to a particular mat- 
ter, as, for example, an impeachment, shaU have the protection of 
the house, during their attendance upon that service.^ A transcript 
of the order, certified by the clerk of the house, must, of com-se, be 
equivalent to the writ of protection, which is usually granted by 
com"ts of justice. 

2. Discharge from Arrest. 

999. If a person, entitled to the privilege of the house, as a wit- 
ness, is arrested, either in coming,"^ whUe attending,^ or in retm-n- 
ing,^ the house wiU, on the facts being made satisfactorily to ap- 
pear, take measures for the discharge of the wdtness from custody. 
Sometimes the course of proceedings is to order the officer who 
made the arrest to attend the house wdth his prisoner, at a time 
appointed ; ^ and then, upon such attendance, and the facts appear- 
ing on examination, to order the prisoner to be discharged. Some- 
times the course is to refer the complaint to the committee of priv- 
ileges,^ and to order the discharge upon their report. The house 
may, also, upon being satisfied of the facts, at once order the pris- 
oner to be released.^ At the same time, if the house should judge 
proper, the persons maldng or concerned in the arrest may be pun- 
ished, as for a contempt. 

1 Lords' Journals, XXV. 625. ^ Comra. Jour. VIII. 525. 

2 Coram. Jour. IX. 366; Lords' Jour. IV. « Comm. Jour. XII. 364. 
143; Same, XXV. 625. ' Comm. Jour. XII. 364, 610. 

8 Comm. Jour. XUI. 521. « Comm. Jour. IX. 20. 

* Comm. Jour. IX. 20. * Comm. Jour. VIE. 525 ; Same, IX. 72. 



Chap. IV.] .witnesses. 397 

1000. If a witness should be arrested on some ciiminal charge, 
against which the privilege of the house does not extend ; or if, 
being arrested in a civil suit or proceeding, the house should not be 
immediately satisfied that he was entitled to privilege ; ^ the officer 
having the witness in custody may be ordered to bring him in cus- 
tody to the house or committee, before whom his evidence is want- 
ed, provided he has not already been examined. 



Article II. Protection of a Witness against the Consequences of 
the Disclosures made by him in his Evidence. 

1001. It has already been seen, that a witness before either 
house of parliament cannot excuse himself from answering any 
question that may be put to him, (with a single exception presently 
to be noticed,) on the ground that the answer would subject him to 
an action; or expose him to a criminal proceeding; or be the 
means of divulging the secrets of his client communicated to him 
in professional confidence ; or be in breach of a judicial oath, as a 
grand-juror; or of a voluntary oath, as a freemason, or the like* 
some of which would be sufficient grounds of excuse in a court of 
justice. This difference, between proceedings in parliament, and in 
the ordinary courts, has been established upon grounds of public 
pohcy, and is considered to be fundamentally essential to the effi- 
ciency of a parliamentary inquiry. But while the law of parlia- 
ment thus demands the disclosure of the evidence, it recognizes to 
the fullest extent, the principle upon which the witness is excused 
from making such disclosure in the ordinary courts of justice, and 
protects him against the consequences which might otherwise re- 
sult from his teslimony ; the rule of parliament . being, that no evi- 
dence given in either house can be used against the witness in any 
other place, without the permission of the house, which is never 
granted, provided the witness testifies truly.^ 

1002. The parliamentary law on this subject is declared and 
embodied in the following resolutions of the house of commons of 
May 26, 1818, namely : first, " that all witnesses examined before 
this house, or any committee thereof, are entitled to the protection 
of this house, in respect of any thing that may be said by them in 
their evidence ; " and, second, " that no clerk or officer of this house, 
or shorthand writer employed to take minutes of evidence before 

1 Comra. Jour. IX. 20. 2 Hans. (2), XVIII. 968, 969, 970, 971 97^ 

973, 974. 

'34 



398 LEGISLATIVE ASSEMBLIES. [PaRT V. 

this house, or any committee thereof, do not give evidence else- 
where, m respect of any proceedings or examination had at the 
bar, or before any committee of tliis house, ^\dthout the special leave 
of the house." ^ During the recess, it is the constant practice for 
the speaker to grant such leave, on the application of the parties to 
a suit.^ 

1003. It will be observed, that these resolutions do not in terms 
prohibit members from giving evidence of the confessions or state- 
ments of a witness before the house. This circumstance having 
been alluded to in debate, Mr. Speaker Manners Sutton took occa- 
sion thereupon to make the following remarks : " Some expres- 
sions have fallen from the learned member, which are so directly at 
variance with the first and most important privileges of this house, 
that I feel it my duty, not to allow them to pass without notice. I 
miderstood him to say, that it might possibly happen that a mem- 
ber of this house might be required to give evidence in a court of 
law of what had passed within these walls. Now I conceive that 
hardly any doubt can exist in the mind of any honorable member, 
that he is not at liberty to give evidence elsewhere of what passes 
here, without the direct, or, at least, the imphed permission of the 
house. I wish to state this principle as broadly as possible ; for if 
I am mistaken, it is high time my error should be corrected. At 
present, I certainly conceive, that on the privilege of preventing 
what passes here from being communicated elsewhere, vitally de- 
pends the dignity and the rights of this house. No honorable 
member who hears what passes within these walls (and no other 
person has a right to hear it) can be required or allowed, to give 
evidence in a court of justice touching the matter which he has so 
heard." ^ 

1004. If a witness is thus sufiiciently protected, so far as the 
oiiicers and members of the house are concerned, there yet seems 
to be nothing in the law or practice of parliament, which prevents 
other persons (reporters, for example,) accidentally or perhaps even 
officially present, if not under the control of the house, and hearing 
the statement of a witness, from testifying to such statement in any 
court of justice. K the law of parfiament does not extend to such 
persons, the only ejffectual mode of securing the protection of a 

1 Comm. Jour. LXXIII. 358; Hans. (1), Jfercerore, Starkie, N. P. Cases, U. 366, with- 

XXXVIII. 919, 956. These resolutions were out previous leave, 
agreed to, on the suggestion of Mr. Speaker, ^ jiay, 316. 

in consequence of the shorthand writer hav- ^ Hans. (2), XVUI. 968, 969, 970, 971, 972, 

ing been examined in the case of The King v. 973, 974. 



Chap. IV.] witnesses. 899 

witness would be, to exclude all but members and officers from the 
house or committee room during the examination ; or to have re- 
course to the expedient, which will be presently mentioned, as? 
usually resorted to in the house of lords. 

1005. In the house of lords, although the same power clearly ex- 
ists, to compel the answer of a witness to criminate himself, and 
although the rule above mentioned is recognized, namely, that evi- 
dence taken at the bar cannot be used against a witness, yet, as 
such evidence may lead to the discovery of other evidence, suffi- 
cient to convict them, the protection afforded by the rule alluded 
to does not seem to be regarded as adequate ; and it has accord- 
ingly been the practice for many years, when the evidence of such 
witnesses is about to be taken, to pass an act (which is of course 
agreed to by the commons) to indemnify them in the fullest man- 
ner against the consequences of their evidence.^ 



Akticle III. Protection against Abuse and Insult.) Personal Violence^ 
and Injury actual or threatened to Person or Property, 

1006. The personal immunities, besides those already mentioned, 
to which witnesses are entitled, are, to be free from all insulting 
and abusive language ; ^ and from all personal violence ; ^ and to be 
protected against any threatened violence or injury, either as to 
person or property ; '^ on account or by reason of their attendance 
or testimony as witnesses. All conduct of this land is regarded 
as a contempt of the authority of the house, and a breach of its 
privileges, and, on the fact being made to appear, punished accord- 
ingly. 

1007. Thus where it appeared that one of the witnesses, before 
a committee, had been insulted and abused, in respect of the 
evidence given by him before the committee ; ^ where a committee 
having sat at the Fleet prison, and there examined some of the 
prisoners as witnesses, and it appeared that the warden of the prison 
had cruelly used one of the witnesses, in consequence of the testi- 



1 Hans. (2), XXHI. 1197, 1198. In the year bill to indemnify such witnesses as should 

1742, the house of commons, in consequence testify truly before the committee; but the 

of the refusal of Paxton and other witnesses bill was rejected by the lords. See Comm. 

to testify before the secret committee to in- Deb. XIII. 245 ; Lords' Deb. V. HI. 174. 

quire into the conduct of the earl of Oxford, ^ Coram. Jour. XVIH. 73, 74, 371. 

notwithstanding the severe punishment the * Ccimm. .Tour. XXI. 247. 

witnesses received for their conduct, found * Comm. .Jour. XVI. 535. 

themselves under the necessity of passing a ^ Comm. Jour. XVIII. 371. 



400 LEGISLATIVE ASSEMBLIES. [1*ART "V. 

mony given by him ; ^ where it appeared, that a party, whose con- 
duct was under investigation before a committee, had used insulting 
language towards one of the witnesses, and had threatened him 
with personal violence, on account of 'the evidence given by him, 
and in case he should give similar evidence in any further stage of 
the proceedings ; ^ the offenders were adjudged guilty of a breach 
of the privileges of the house, and committed to the custody of the 
sergeant-at-arms. 

1008. So, where a committee, while proceeding with the inquiry 
referred to it, acquainted the house, that one of the witnesses, 
after his examination before the committee, had received a letter 
informing him that his Kfe was threatened, and his house threat- 
ened to be burnt down ; the house thereupon directed the sheriffs, 
justices of the peace, and other peace-officers of the county, to take 
effectual measures for securing the peace in the place in question.^- 
So, where a committee acquainted the house, that a Tvdtness before 
them, who was a private soldier, gave his evidence with great 
reluctance, as being apprehensive of ill usage, and of being sent 
away, and that the committee promised him to la,y the matter 
before the house, that he might have their protection; it was there- 
upon resolved, that this house will proceed with the utmost severity 
against any person that shall threaten, or any way injure, or send 
away, the said witness, or any other person that shall give evidence 
to any committee of this house.* 



Sectiois- V. Of Misconduct on the part of Witnesses, oe other 
Persons, relative to their Attendance and Examination. 

1009. The offences, of which witnesses may be guilty, relative 
to their attendance, — such as disobedience of the order or sum- 
mons for their attendance, keeping out of the way to avoid service, 
absconding to avoid being taken into custody, — having already 

1 Comm. Jour. XXT. 247. as embodying a rule of parliamentary law. 

2 Comm. Jour. LXIV. 223. The house of commons, upon complaint being 
s Comm. Jour. XX. 355. made of the censure of Dunbar, resolved, 
* Comm. Jour. XVI. 535. The proceedings " that the presuming to call any person to 

in the house of commons, in 1733, relative to account, or. to pass a censure upon him, for 

the censin-e passed by the house of repre- evidence given by such person before this 

sentatives of the province of Massachusetts house, or any committee thereof, is an auda- 

Bay, upon Jeremiah Dunbar, on account of clous proceeding, and an high violation of the 

certain evidence given by him before a com- privileges of this house." Comm. Jour. XXII 

mittee of the house of commons, were of too 145, 146 ; May, 140, 
political a character, perhaps, to be considered 



Chap. IV.] witnesses. 401 

been incidentally treated of, so far as relates to compelling their 
attendance, it only remains to be observed, that all such misconduct 
on the part of a witness, if intentional, is also a breach of the privi- 
leges of the house, and a contempt, for which the offender is usually 
punished with great severity. If it appears, however, that no inten- 
tional contempt has been committed, as where a witness neglects 
to attend, by reason of infirmity, or for want of means to defray 
necessary expenses, such witness is discharged from custody, with- 
out punishment.^ 

1010. Witnesses, while under examination, may also be guilty 
of a contempt and breach of privilege, by refusing to answer a 
proper question, or to produce a paper which they have been directed 
to produce ; by giving false testimony ; by prevaricating in their 
evidence ; or by disorderly or disrespectful conduct towards the 
house or committee, or towards members, or towards any party or 
counsel. 

1011. When a witness refuses to answer the questions which he 
is directed to answer, or to produce a paper or other document, the 
proceeding against him is intended not only as a punishment for 
his contempt, but also to compel him to obey the order. For these 
purposes a contumacious witness is usually committed, in the first 
instance, to the custody of the sergeant-at-arms. If this fails to 
induce him to submit himself to the order, he may then be com- 
mitted to Newgate, or some other public prison. Instances have 
occurred, in which the confinement of a witness has been accom- 
panied wdth circumstances of severity, intended to bring him to 
submission; as, for example, in the year 1742, in the case of 
Nicholas Paxton, who, for refusing to answer the questions put 
to him by the secret committee to inquire into the conduct of the 
earl of Oxford, was, in the first instance, committed to the cus- 
tody of the sergeant-at-arms, and debarred the use of paper, pen, 
and ink ; and, persisting in his refusal, was then committed a close 
prisoner to Newgate, the house at the same time ordering, that he 
be not allowed pen, ink, or paper, — that no person be permitted to 
have access to him, without leave of the house, — that his wife have 
leave to remain with him during the time of his confinement, but 
that she be not allowed pen, ink, or paper, — and that no person 
have access to her without leave of the house.^ In this case, the 
severity with which Paxton was treated proved ineffectual ; and the 

1 Comm. Jour. LXXIV. 170, 181, 182. « Comm. Jour. XXIV. 184 Comm. Deb 

Xm. 224, 225. 

34* 



402 LEGISLATIVE ASSEMBLIES. [PaRT V. 

house j&nding it impossible to compel him, ■^'ith some others, to 
answer, resorted to the expedient of passing a bill of indemnity ; 
but, this being rejected by the house of lords, the inquiry was, of 
course, defeated. Other instances of the same kind occur in the 
journals. In the year 1809, on the occasion of the inquiry with 
reference to the conduct of the duke of York, it being proposed to 
commit one of the witnesses (JVIrs. Clarke) to the custody of the 
sergeant-at-arms, \\'ith orders to deny her access to any person 
■vi^hatever, I\Ir. Speaker said, " the house ought to pause, before 
they came to a decision upon a point, in \^"hich the liberty of the 
subject was so materially concerned." ^ There seems to be no 
reason to doubt, that the house may put a contumacious "fitness 
into close confinement, — and tliis in fact was all that was done in 
Paxton's and other cases of the same kind, — accompanied v^dth 
such restraints from communication ^.Tith other persons as it may 
deem necessary to prevent the ends of public justice from being 
finisti'ated ; but whether this right should be exercised or nor, in any 
given case, is a question deserving of very grave and careful con- 
sideration.2 

1012. In regard to false testimony, there is a difference betv/een 
the two houses. Li the house of lords, "^"here witnesses are sworn 
and examined on oath, false testimony amounts to the legal crime 
of perjury, and is punishable as such by prosecution in the courts 
of ordinary criminal jurisdiction. Hence it does not appear to be 
customary there to punish false evidence as a contempt. In the 
house of commons, where, as abeady stated, ^^^.tnesses are not 
sworn, false evidence is only punishable as a contempt ; but in 
order that the nature of the offence may be distinctly known, one 
of the sessional orders (first adopted in the year 1700), declares, 
" that if it shall appear, that any person hath given false evidence 
in any cause before the house, or any committee thereof, this house 
will proceed with the utmost severity against such offenders."^ 
The jomnals contain many cases of proceedmgs against witnesses 
for this offence. 

1013. Prevarication is a term of general and broad signification, 
which seems to embrace every form and variety of intentional eva- 
sion of the inquiry put to a witness, short of direct falsehood ; as, 
by answering aside fi-om the question ; answering a question in a 
different sense from that in which it is put ; pretending ignorance 

1 Hans. (1), XII. 436. » Comm. Jour. XIH. 350. 

> See Hans. (1), XXXIX. 976. 



Chap. IV.] witnesses. 403 

or want of recollection ; in short, by attempting to prevent the 
house from obtaining the truth, by any cavilling, quibbling, or 
shuffling, or by any form of fraudulent or deceptive answers. This 
offence is only punishable as a contempt. 

1014. Besides the different kinds of misconduct, which may be 
committed by other persons with reference to the attendance or 
examination of witnesses, and which have already been adverted to 
under the head of privilege, there are two offences, which form the 
subjects of the following sessional order of the house of commons, 
which was first adopted in 1700, namely : — " that if it shall appear, 
that any person hath tampered with any witnesses, in respect of their 
evidence to be given to this house, or any committee ; ^ or, directly 
or indkectly, endeavor to deter or hinder any person from appear- 
ing or giving evidence ; ^ the same is declared to be a high crime 
and misdemeanor ; and this house will proceed with the utmost 
severity against such offenders." ^ 

1015. If any of the offences above mentioned are committed in 
the course of an examination before the house, the house may pro- 
ceed at once, if it thinks proper, to suspend the examination and 
to inflict punishment for the contempt, and then to resume and pro- 
ceed with the examination ; or, if it be deemed most convenient not 
to interrupt the business in hand, it may defer the matter until the 
examination is completed. Where the contempt is of a nature to 
interrupt or embarrass the proceedings, it will, of course, be most 
proper, if not entirely indispensable, to consider and punish the 
contempt immediately. 

1016. When any such misconduct takes place before a commit- 
tee of the whole, — which, as a committee has no power to punish, 
— it is in the power of the committee, if it thinks proper, to rise 
and report the special matter to the house immediately ; the house 
may proceed forthwith to punish the offender, or put off the matter 
to a more convenient time ; and may then again resolve into the 
committee and proceed with the examination ; or the committee 
may report the special matter, when it reports progress, at the 
close of its sitting for that day, or reserve it untfl its final 
report. 

1017. A select committee can only report the special matter 
relating to the misconduct of a witness, when the house is next 
sitting, or when it makes its final report. 

1 See the case of William Williams, Hans. 2 May, 307; Comm. Jour. XXXVHI. 651, 
1), Xn. 460, 461. 677, 813, 856, 875, Same, XC. 330. 

" Comm. Jour. XUI. 350, 648. 



404 LEGISLATIVE ASSEMBLIES. [PaUT V. 

1018. In all cases of misconduct on the part of a -udtness, if the 
house proceeds to pumshment, before the examination is concluded, 
it can, at the same time, du'ect the officer having the custody of 
the offender, to bring him in custody to give his evidence before the 
house or the committee.^ 

1019. It is scarcely possible to enumerate aU the different sorts 
of disorderly conduct, of which a witness may be guilty ; it is dis- 
orderly, for example, to appear at the bar in a state of intoxication ;^ 
or for a quaker, in the midst of his testimony, to address the 
house.-^ 

1020. It seems hardly necessary to observe, that, whilst a -fat- 
ness is under examination, aU persons participating in it, as parties, 
counsel,^ or members, are to conduct themselves in an orderly and 
respectful manner.^ 



Section VL Of other Matters relating to Witnesses and 
THEIR Examination. 

1021. It may sometimes happen, especially in inquiries of a pub- 
lic nature, that persons not attending as witnesses or concerned as 
parties may find themselves implicated by the testimony of the 
witnesses, and may desire to relieve themselves from the impu- 
tation, or to explain the matters with which they are thus con- 
nected. When this is the case, such persons may by petition to 
the house, or through some member, signify their desire to be 
examined as T\dtnesses, and, if the house thinks proper, may be so 
examined touching the matters which they wish to explain or deny.^ 
So, where witnesses are contradicted by other witnesses, the former 
may, at their own request, be reexamined to the same facts, in the 
presence of the latter, who may then be called upon to affirm or 
take back then* first statement.' Members, who desire to make 
explanatory statements, or to contradict witnesses, may be allowed 
to do so, upon signifying their wdshes to the house, and submitting 
themselves to examination thereupon, in the same manner as other 
witnesses.^ If the testimony complained of has been given befo»3 
a select committee, which has not yet made its report, or which 

1 Coram. Jour. XVI. 33S, 455, 456, 473, 484. ^ gee the case of 3fr. Paull, a petitioner — 

2 Grey, L 141; Hans. (1), XH. 678. 1062. Hans. (1), VIH. 1063, 1064. 

3 Grey, HL 102. 6 Hans. (1), XH. 441, 511. 
* Lords' Jour. XXV. 315, b. 316, a. ^ Hans. (2), IX. 487. 

8 Hans. (1), XH. 521 522. 



Chap. IV.] witnesses. 405 

has adjourned without reporting, it seems, that the matter cannot 
be regularly proceeded with, until the report of the committee has 
been received, or the minutes of their proceedings laid before the 
house ; until which time, the house can have no cognizance of what 
has passed in the committee, but are bound to presume that every 
thing done by it has been regular.^ 

1022. The proper officer, to have the custody of papers and 
letters produced by witnesses, or otherwise introduced in evidence, 
during the intervals between one examination and another, before 
the house or a committee of the whole, is the clerk of the journals 
and papers, who is an officer of the clerk's, and for whom the latter 
is responsible.^ 

1023. But where the papers produced by a witness were to be 
submitted to the examination of experts, for the purpose of enabling 
them to testify, on the examination being resumed, as to whether 
the writings were genuine writings or not, the papers were ordered 
to be placed in a box and delivered to the clerk with directions that 
they should remain in his custody, until the examination was 
resumed; but that at particular hours, they should be shown to 
members of the house, and to such other persons, as should be 
authorized by the speaker.'^ 

1024. When witnesses are summoned for the purpose of any 
public inquiry, to be examined by the house or a committee, their 
expenses are paid by the treasury, under orders signed by the assist- 
ant clerk of the parliaments (that is, the clerk assistant in the house 
of lords), the clerk of the house of commons, or by the chairman of 
committees in either house. In the house of commons, where pub- 
lic inquiries are the most frequent, certain regulations have been 
adopted, by which all the facts, necessary to enable the house to 
determine upon the proper allowance to be made to witnesses for 
their expenses, are made to appear in the printed proceedings of 
every committee. In the house of lords, a select committee has 
sometimes been appointed, to inquire into and report in detail the 
expenses that should be allowed to witnesses.* In this country, 
when an investigation by witnesses takes place at the public 
expense, the witnesses are usually paid out of the contingent fund 
of the house, by whose order the inquiry is undertaken, if it has 
any ; otherwise, out of the public treasury, in virtue of an act passed 
for the purpose. 

1 Hans. (2), X. 8, 9, 10 4 May, 317. See also Comm. Jour. XXXV 

a Hans. (1), XII. 839, 840. 659, 596. 

3 Hanij. (1), XII. 840. 



406 LEGISLATIVE ASSEMBLIES. [PaRT V 

1025. When witnesses attend at the instance of a party, theii 
expenses are to be defrayed by such party. If the witnesses attend 
without any summons or order, their expenses seem to be matter 
of private agreement or understanding between them and the par- 
ties on whose behalf they attend, with which the house has nothing 
to do ; if they attend upon the summons or order of the house, and 
the parties refuse to pay them, it is competent for the house to 
interfere and order them to be paid ; ^ and, in the order or summons 
for the attendance of witnesses, a condition may be inserted, that 
they shall first be paid or satisfied their reasonable charges, if they 
require it, before being obliged to attend.^ 



CHAPTER FIFTH. 

or HEARING PARTIES INTERESTED. 

1026. It is a principle of general jurisprudence, recognized in the 
practice of all judicial tribunals, that no man's rights or interests 
shall be adjudicated upon until he has had an opportunity to be 
heard to explain, assert, or defend them. The same principle is 
recognized in the practice of parliament, so far as its proceedings 
are judicial, or partake of the judicial character, and so far as they 
affect the rights' and interests of particular individuals, distinct from 
those of the citizens in general.^ 

1027. According to the usual practice, a hearing takes place, in 
pursuance of an order of the house, made either upon the petition 
of the party interested, praying to be heard, or upon the motion of 
some member.* The common form, in which a hearing is prayed 
for, is, that the petitioner may be heard either by himself or by his 

1 Coram. Jour. XVIIL 301, 596. but hearings may occur upon other important 

2 Comm. Jour. VIII. 322. occasions, especially in reference to private 

3 It must be borne in mind, that the sub- claims, which, either from their magnitude, 
ject of this chapter relates to the right of or from the principles involved, are assimilated 
being heard, orally and by -witnesses and evi- to public measures. See J. of H. IV. 354, 355, 
dence, either in person or by counsel, and not 361; Same, 527, 542, 545; Same, VI. 175; 
to the right of petition, which is treated of Same, VIII. 234. When a hearing is allowed, 
separately and by itself. the parties are introduced by the officers of 

■* A hearing of the pai'ties takes place in the the house, under the direction of the speaker, 

house of representatives of the congress of the and are then informed by him of the order of 

United States, most frequently, as we shall see the house in their behalf. Cong. Globe, VI. 

hereafter, in cases of controverted elections; 105. 



Chap. V.] hearing parties. 407 

counsel ; and this is the usual form of the order, whether it is made 
on motion merely, or upon petition ; but, as it is entirely in the 
discretion of the house to determine how a party shall be heard, the 
order may be framed thus in the alternative, or it may restrict the 
hearing to the party alone without counsel,^ or, to the counsel 
alone, without the party. It is not usual to allow a party to be 
heard both in person and by counsel ; and a motion to that effect 
being made in the time of Mr. Speaker Onslow, he said that " it 
never was the method of this house to admit parties to be heard 
by themselves and counsel ; the motion that is always, made in 
such cases is, that the petitioners be admitted to be heard by them- 
selves or their counsel." ^ If, however, a peculiar case should occur, 
in ^vhich the interests of a party could only be properly presented, 
by hearing both him and his counsel, the house would doubtless 
allow a hearing to take place in that manner.'^ 

1028. It does not appear to be necessary, however, in every case, 
that there should be an express order for the hearing of a party ; it 
may be implied from the nature of the subject of a petition, or 
from the proceeding which takes place ; thus, where a petitioner 
sets forth certain facts in his petition, and prays that leave may be 
granted to bring in a bill, thereupon, and the petition is ordered to 
be taken into consideration at the bar of the house, or is referred to 
a committee in the usual form, such a proceeding appears to be 
equivalent to an order for hearing the petitioner, in support of the 
matters and things in his petition ; so the reference of an election 
petition, or an order for taking such a petition into consideration 
at the bar of the house, before the introduction of the modern sys- 
tem of trying controverted elections, was equivalent to an order for 
hearing the parties on both sides. The right to introduce evidence 
and to examine witnesses, seems to be incidental to the right of 
being heard. 

1029. When a party is admitted to be heard in any of the forms 
above mentioned, the hearing must be restricted, of course, to the 
matters and things set forth in the petition, or which are embraced 
within the terms of the order, when it is not founded on a petition. 
It is competent for the house, however, to impose such special re- 
strictions, with regard to the hearing, as it may think proper; which 
may either be included in the order made for the hearing, in the 
first instance, or be the subject of one subsequently made even 
during the course of the hearing.* When the hearing is ordered to 

1 Comm. Deb. X. 419. « Pari. Reg. II. (Lords), 30. 

« C6mm, Deb. X. 98. * Hans, (3), LIV. 73; Pari. Reg. XVII. 199. 



408 LEGISLATIVE ASSEMBLIES. [PaRT V 

take place before a committee, any variation from the terms of the 
original order must be effected by means of an instruction from the 
house to the committee, and not by any vote or proceeding of the 
committee itself. 

1030. Where a hearing is ordered at the bar of the house, and 
the order of the day for the proceeding has been read, the house 
may then refuse to dhect the party or counsel to be called in, 1hus 
in fact discharging the order for the hearing; or it may restrict 
the hearing in any manner it may think proper, either before or 
after the hearing has commenced. But when the hearing is before 
a committee, the committee has no such discretion, either as to the 
hearing itself, or the manner in which it is to be conducted ; the 
order of the house being obligatory upon it to hear the party ac- 
cording to the terms of the order.^ 

1031. "When a hearing takes place with reference to any subject, 
which is not embraced in the form of a bill, it is for the house to 
determine as to the time and manner, in each particular case ; 
when had upon bills, the hearing usually takes place on the second 
reading, according to certain established rules of proceeding, which, 
so far as may be necessary, will be treated of under the head of 
biUs, in the fifth and sixth sections following. 

1032. In the year 1771, it was stated by a member in debate 
in the house of commons, that " The rule of proceeding of this high 
and supreme court, upon a question of privilege, is, not to hear 
counsel; not to allow counsel, to allow lawyers, to reason and 
argue, and form conclusions, at its bar, on this subject." ^ This 
was laid down at a time when the privileges of parliament were 
considered to be very large and indefinite, " and when it was thought 
that the most dangerous consequences would result," if all the 
privileges of parliament were once to be set down and ascertained, 
and no privilege to be allowed, but what was so defined and de- 
termined.3 When such notions prevailed, — when, in short, the 
privilege of parliament was what each house chose to make so 
upon the particular occasion, — it cannot be thought strange, that 
counsel should be precluded from addressing the house upon topics 
so entirely and exclusively within its own absolute discretion, and 
to be decided upon principles and with reference to circumstances, 
of which strangers must necessarily be ignorant. To allow coun- 
sel to be heard on a question of privilege, — such being the nature 
of privilege, — would be precisely equivalent to calling in the party 

1 Pari. Eeg. (2), XVIII. 16, 18. s Black. Comm. 1. 164. 

a Cav. Deb. II. 428. 



Chap. V.] hearing parties. 409 

implicated, or his counsel, to give their advice or to make their re- 
quest to the house, with reference to the kind or degree of punish- 
ment which it would be proper to inflict on him. Since' the period 
above mentioned, a dilferent doctrine has been established as to the 
nature of parliamentary privilege ; which is now regarded as a part 
of the law of the land evidenced by the customs and usages of par- 
liament, when not specially defined by statute, and incapable of 
enlargement by the resolutions or proceedings of either house. It 
may vv .3II be doubted, therefore, whether the rule above mentioned 
ought not now to be considered as obsolete.^ 

1033. It is the duty of a party, or counsel, on a hearing, to con- 
fine himself, both in the introduction of his evidence, and in the 
course of his argument, to the matters and things contained in his 
petition, or, embraced in the order for the hearing ; ^ to pay due 
observance to the orders of the house ; to conduct himself respect- 
fully towards the house or committee and towards all the members ; 
and to treat other parties, counsel and witnesses, in a proper manner. 

1034. Having thus considered the subject generally, it will be 
proper now to examine it with especial reference to each class of 
cases in which hearings take place. The cases, in which the rights 
or interests of individuals are so involved as to give them a right, 
according to the law and practice of parliament, to be heard, occur : 
first, when the house is proceeding in its judicial or quasi-judicial 
capacity ; second, when it is proceeding legislatively in reference to 
a matter of private concern ; and, third, when it is proceeding, in 
its legislative capacity, in reference to a matter of pubhc concern. 
Under the head of judicial proceedings, are embraced those which 
take place in adjudicating upon the right of members to their seats, 
and in punishing for offences committed against the authority of 
the house or the persons of its members, both of which are strictly 
judicial, the first being of a civil, and the last of a criminal charac- 
ter ; and, under the head of quasi -judicial proceedings, are embraced 
inquii-ies instituted into the conduct of some public officer or other 
functionary, with a view to his impeachment or removal from office, 
or for the purpose of correcting some official abuse, and the pro- 
ceedings which take place m reference to bills of attainder, of pains 
and penalties, and disqualifying bills. The second division above 
suggested includes private, and the third public, bills. The several 
sorts of proceedings thus enumerated will now be separately con- 
sidered, with reference to the hearing of the parties. 

1 See Hans. (1), VHI. 1000, 1002, 1059. 2 Comm. Jour. XLI. 839. 

35 



410 LEGISLATIVE ASSEMBLIES. [PaET V 



Section I. Rights op Members to their Seats. 

1035. In both houses, when the right of a member to his seat 
comes in question, it is tried between the parties, if there are ad- 
verse claimants, or ex parte, if there is but one, in a manner analo- 
gous to the trial of a question of civil right before the ordinary 
tribunals ; the parties are allowed to introduce and examine wit- 
nesses, and are fully heard, by themselves or their counsel, and the 
members, who sit as judges, are bound to decide not according to 
what they may think most expedient in the particular case, but 
according to the law and the evidence. In all cases of this kind, 
in whatever form the inquuy may be instituted, it is the right of 
the parties interested to be heard, either with or without an express 
order to that effect. When a petition is received and referred to a 
committee, or ordered to be taken into consideration at the bar ol 
the house, no express order seems to be necessary ; the proceeding 
itself is a sufficient authority to the parties to be heard. In the 
commons, the practice with reference to controverted elections is 
now regulated entirely by statute. In the house of representatives 
in congress, inquhies relating to the seats of members are usually 
referred, in the first instance, to the committee on elections before 
whom the parties produce then- evidence and are heard. It is com- 
mon, also, for them to be allowed a hearing, by leave of the house 
in the house itself, or in comixdttee of the whole, on the resolutions 
reported by the committee on elections. Where a hearing of this 
kind takes place, the petitioner, or other person, addressing the 
house on his behalf, is bound, by aU the rules, with regard to speak- 
ing, which are obfigatory on members.^ 



SECTioisr II. Infliction oe Punishment. 

1036. When proceedings are instituted or take place for the 
punishment of offences, — against the house itself or the persons of 
its members, — the parties implicated are always heard in their de- 
fence, unless the offence is of such a nature and so manifest in its 
character, as to render any such proceeding a mere idle ceremony ; 
as, for example, in the case of a witness who prevaricates, testifies 
falsely, or refuses to answer, the house proceeds at once, without 
hearing the offender, unless by way of apology, or to manifest hig 
contrition, — to pmiish him for his contempt. 

' ■ 1 Cong. Globe, XV. 230, 231. 



Chap. V.] heaking parties. 411 



Section III. Inquiries respecting the Conduct of Pubmo 

Officers. 

1037. In cases of this description, when the pm-pose in view is 
the removal or punishment of the individual, opportunity is always 
afforded, before the proceeding is terminated, for the party con- 
cerned to be heard in his defence. When a complaint of miscon- 
duct is made by private individuals against a public officer, and an 
investigation takes place, for either of the purposes above stated, 
the inquiry is usually conducted by the parties before the house or 
committee, in a manner analogous to a proceeding in court. When 
an inquiry is instituted, in w^hich the conduct of a public officer is 
involved, or incidentally comes in question, the investigation is 
usually ex parte, and necessarily so, when it is before a committee 
of secrecy. In such a case, if any charge grows out of the proceed- 
ing, the party implicated will be entitled to a hearing. When an 
investigation takes place, with a view to an impeachment, the pre- 
liminary inquiries, upon which the articles of impeachment are 
founded, are generally ex parte. 



Section IV. Bills of Attainder and of Pains and Penalties. 

1038. The preliminary inquii-ies, if any are instituted, which take 
place previous to the introduction of bills of this description, are 
usually, if not always, conducted ex parte ; but, at the proper stage 
the parties affected by them are admitted to defend themselves by 
counsel and witnesses before both houses. 



Section V. Private Bills. 

1039. In reference to private bills, the proceeding is partly of a 
legislative and partly of a judicial character ; legislative, so far as 
the forms of proceeding are concerned, and the interests of the 
public are involved ; judicial, so far as it is necessary to discriminate 
between and adjudicate upon the confficting interests of different 
parties. When, therefore, in proceeding upon a private bill, there 
is occasion for the exercise of judicial inquiry and determination, 
the parties interested on all sides are entitled to be heard. 

1040. By the standing orders of both houses of parliament, all 
private bills are required to be brought in upon petition ; and the 



412 LEGISLATIVE ASSEMBLIES. [PaRT V. 

receiving such a petition, and referring it to a committee for con- 
sideration, in the usual manner, is equivalent to an order author- 
izing the petitioners to be heard. But it is an established rule or 
order, not to admit adverse parties to be heard before the com- 
mittee to whom such petition is referred, in the first instance. If, 
upon the case as presented by the petitioners, the committee come 
to a conclusion favorable to the prayer of the petition, and a bill is 
thereupon brought in, those parties who are adversely interested 
may present their petitions against the bill or some of its provisions, 
and be thereupon heard against it at some appropriate stage of the 
proceedings. Where adverse parties are thus allowed, upon their 
petition, to be heard, it is usual, at the same time, to make an order 
for the hearing of the parties in favor of the bill, and against such 
petition. The rule is the same, where a bill is introduced on 
leave, without any previous reference of the petition ; or, where the 
petition is taken into consideration by the house itself, instead of 
being referred. 



Section VI. Public Bills and other Measures of a Public 

Character. 

1041. In reference to public bills, and other measures of a pubhc 
character, the proceeding of parliament is strictly in its legislative 
capacity. It originates all such measures as it deems for the pubhc 
good ; it institutes and conducts inquiries, when necessary, for its 
own information ; and it enacts laws and takes other public meas- 
ures, according to its own wisdom and judgment. The forms, in 
which its deliberations are conducted, are established for its own 
convenience ; and all its proceedings are independent of individual 
parties ; the constituents of the legislative body may petition, and, 
in peculiar circumstances, may be heard, but they do not, as in the 
case of private bUls, participate directly in the conduct of the busi- 
ness, or have any immediate influence upon the judgment of par- 
liament.i At the same time, however, that parliament is bound, in 
the exercise of the high and important functions with which it is 
intrusted, to decide upon measures of public concern, with refer- 
ence to public and general grounds only, and irrespective of the 
wishes of private individuals ; it yet recognizes the great principle, 
that the interests of the public are nevertheless to be effected at 

1 May, 384, 385. 



Chap. V.] hearing parties. 413 

the smallest possible expense of private and individual interests; 
and it therefore allows private persons, whose interests are injuri- 
ously affected or likely to be so by public measures, to be lieard 
with reference to such measures. 

1042. The ground, therefore, upon which private individuals are 
allowed to be heard with reference to public measures, is the effect 
and operation of those measures upon the peculiar interests of such 
persons, distinct from their effect and operation upon the public 
generally. In such cases the controversy is not between the con- 
flicting claims and interests of individuals ; but between the in- 
terests real or supposed of the public, on the one side, and the 
interests real or supposed of private persons, on the other. With 
regard to the former, it would be manifestly at variance with the 
theory of legislative assemblies, to allow individuals to be heard ; 
this would be to allow persons who were not members to partici- 
pate in the performance of duties, which members alone are ap- 
pointed to perform, and for the performance of which they alone 
are responsible ; and as there could be no limit to such hearings, if 
allowed at all, — one individual having as much right as another, 
to present his views, — it would be clearly impracticable, consist- 
ently with the performance of any legislative business at all, to 
allow such hearings to take place. With regard to the latter, it is 
equally clear, that in no other mode than by a hearing, can the 
rights and interests of individuals be adequately represented for the 
consideration of the legislative power. The foregoing considera- 
tions suggest the general ground upon which, it is believed, the 
usage and practice of parliament, on this subject, rests, namely, that 
individuals are entitled to be heard, with reference to measures of 
public concern, so far as their private and peculiar interests are 
thereby affected, and so far as those interests are legitimately en- 
titled to the consideration of the legislature. The cases in which 
private parties are entitled to be heard, with reference to public 
measures, may be arranged in two classes, ^r^^, where the parties 
pray for relief by the introduction of some public measure ; and, 
second, where they seek to avoid an injury, which will result 
to them from the adoption of some public measures already 
pending. 

1043. I. When the rights or interests of private individuals are 
peculiarly affected, in an injurious manner by the state of existing 
institutions and laws, or by circumstances growing out of the 
foreign or other relations of the country, such persons may bring 
their grievances to the attention of parhament, by way of petition, 

35* 



414 LEGISLATIVE ASSEMBLIES. [PaET V 

and may be heard in support of their claim to relief; although 
relief can only be obtained by the adoption of some measiire of a 
public character. Many cases of this description are to be found 
in the journals of both houses. The following may be taken as 
examples. In the year 1737, several petitions of merchants and 
others, trading to and interested in the British plantations in 
America, were presented to the house of commons, setting forth the 
injuries and losses, which the petitioners had sustained, in conse- 
quence of the depredations of the Spaniards upon their trade and 
commerce. These petitions were referred to the consideration of a 
committee of the whole house, with instructions to hear the peti- 
tioners, if they should think fit.^ In the following year, a conven- 
tion having in the mean time been concluded with Spain, a copy 
of which had been communicated to the house of commons, and 
referred to a committee of the whole house, several petitions of a 
similar character were presented, representing the insufficiency of 
the measm-es for the relief of the petitioners ; which petitions were 
refen-ed to the committee of the whole, with instructions to hear 
the petitioners.^ In the year 1786, the retail shopkeepers of Lon- 
don and other places petitioned parliament for the repeal of an act 
passed in the previous session for imposing a tax on shops, on the 
ground, that the tax was in fact an additional house tax, borne by 
retail traders alone, which did not fall upon the consumer, and was 
consequently partial and unjust ; these petitions were referred to 
the consideration of a committee of the whole house, A^dth directions 
to hear the petitioners.'^ But where the abuae or grievance com- 
plained of is of a general and public character, and does not pecu- 
liarly affect the rights or interests of particular individuals, peti- 
tioners of that description are not in general entitled to be heard ; 
thus, where a petition of certain burgesses of the royal burghs of 
Scotland, in behalf of themselves and others, was presented to the 
house of commons, complaining of very great grievance in the 
administration of the government of aU the royal burghs of Scot- 
land, and praying that the system of government might be altered, 
corrected, or amended ; the house refused the petitioners a hearing, 
apparently, on the gromid above mentioned.* 

1 Comm. Deb. X. 96, 105. " generally speaking, none but private peti- 

2 Conim. Deb. X. 417. tions from individuals, were supported by 

3 Comm. Jour. XLI. 175, 176, 177, 187, 189, counsel at the bar; but there were exceptions 
205, 245. to this, according to circumstances; the East 

* Comm. Jour. XLVIL 749, 750; Pari. Eeg. India Company, who held rights by charter, 
(2), XXXII. 447, 448, 449; Jlr. Speaker had been heard by counsel on public bills." 
Addingtou, in giving his opinion, said, that Pari. Keg. as above. 



Chap. V.] hearing parties. 415 

1044. II. When the rights or interests of private individuals are 
liable to be injuriously affected by the adoption of some public 
measure, which is already introduced and pending, such persons 
are entitled to be heard against the measure in question, so far as 
their interests are concerned. The following are cases of this kind. 
In the year 1783, a bill to shorten the period of limitation for the 
bringing of writs of right being under" consideration in the house 
of commons, an individual, alleging himself to be the son and heir 
of the late earl of Leicester, petitioned to be heard at the bar ap^ainst 
the bill, on the ground, that, as it was then drawn, it would be an 
effectual and insuperable bar to the prosecution of his claims to the 
estate of his father ; the petitioner was heard accordingly, and a 
general saving clause was thereupon introduced into the bill, allow- 
ing him and all others similarly situated, a reasonable time for the 
commencement of their actions.^ In the year 1785, the house of 
commons having agreed to certain resolutions for adjusting the 
commercial intercourse between Great Britain and Ireland, and 
sent them to the lords for their concuiTence, petitions were pre- 
sented in that house against the resolutions, by the manufacturers 
of glass and others, who were allowed to be heard in support of 
their petitions.^ The rule is otherwise, where the measure in ques- 
tion is not one which affects the interests of individuals in a 
peculiar and distinct manner. Thus, where a bill was pending in 
the house of commons for repealing the duties on tobacco and snuff, 
and for granting new duties in lieu thereof, and the city of London 
petitioned to be heard against the bill in order to show the injurious 
consequences which would result to the trade and navigation of 
Great Britain from any further extension of the excise laws, the 
house refused a hearing, on the ground, that it was " a principle, 
never to hear any persons at the bar of the house, by their counsel, 
against a biU, but when they stated that they had an immediate- 
interest in such bill, and that if it passed into a law, their interest 
would be materially affected." ^ 

1045. In the cases above stated, and in other similar cases, where 
petitioners are allowed a hearing with reference to public measures, 
it is not the usage, as it is in the case of private biUs, to make an 
order for the hearing of parties on the other side ; the measure thus 
called in question being of a public character, and to be sustained 
on public grounds, which it would be inconsistent with the func- 

1 Pari. Reg. (2), X. 201, 202, 203. 3 Coram. Jour. XLIV. 511; Pari. Reg. (2), 

* Pari. Reg. (2), XVIH. ; Lords, 27. XXVI. 306 



416 LEGISLATIVE ASSEMBLIES. [PaRT V. 

tions of a legislative body to receive, either on the one side or on 
the other, from a hearing of private individuals at its bar. Many- 
cases have occurred, however, in which the house, without any claim 
made on the part of an adverse party, to be heard, has thought 
fit, for its own satisfaction, to call for and hear further evidence, 
after the petitioners against a bill have closed their case.^ 

1046. Li order to authorize a hearing, in reference to a public 
measure, there must be an order of the house to that effect ; which 
is usually made upon the petition of the parties interested, and 
either directs the hearing to take place at the bar of the house, or 
refers the petition to the consideration of a committee, with an 
instruction or dkection to the committee to hear the parties there- 
upon, agreeable to the prayer of their petition.^ 

1047. It frequently happens, that the public measures, which are 
the subject of a hearing, affect great numbers or particular classes 
of individuals, in a similar manner. When this is the case, those 
persons who are similarly interested may unite in one petition, or 
they may come to the house with several petitions. In the latter 
case, it must be optional with the house, of course, to allow as 
many hearings as there are petitions, or to restrict aU the petitions 
in the same interest to one hearing. If the house was obliged to 
hear the parties separately on each of a number of separate petitions, 
— aU having the same interest in view, — persons desh'ous of 
impeding the progress of any public measure would have nothing 
more to do than to come to the house \\dth separate petitions, all 
of the same tendency, and calculated to promote the same interests ; 
and, by that means, the house or the committee would be obliged 
to sit and hear day by day, arguments and evidence solely calcu- 
lated for the purpose of procrastination, but Vidthout affording any 
new light upon the matter before it.'^ But this is a matter which 
of necessity must depend entirely upon the discretion of the house, 
to be exercised according to the circumstances of each particular 
case ; and, in which great latitude would be lilvely to be allowed, 
so long as the object of petitioners appeared to be to inform the 
house, without any unnecessary consumption of its time ; thus, 
where petitions relative to the same public measure, and founded in 
the same interest, have been received fr'om several different places, 
it has been the usage to allow a separate hearing on each, if desu-ed 
by the parties. 



1 Hans. (1), X. 1251, 1252, 1253. 3 Parl. Reg. H. 18 ; Same, XXIV. 91, 102. 

' Comm. Jour. XLI. 205. 



Chap. VI. J communications with public officers. 417 



CHAPTER SIXTH. 

PUBLIC OFFICERS SUBJECT TO THE ORDER OF THE ASSEMBLY. 

1048. The power of the two houses to obtain information, by 
calling on public officers to furnish them with accounts, returns, and 
statements of facts, relative to the duties and business of their 
respective offices, has already been alluded to in a former chapter. 
Such officers may also be required to attend as witnesses, and to 
produce records and papers, which are in their official custody. 
But the authority of parliament does not stop here. Public officers 
are not only bound to yield obedience to requisitions of this kind ; 
they are also required to lend their official aid, in certain cases, or 
to perform certain official duties, by the dii-ection of either house. 
It would not be practicable to enumerate in detail, all the officers 
who are thus, for particular purposes, subject to the order of parfia- 
ment ; or the various official acts, which, according to the laws and 
usage of parliament, they may be called upon to perform. It is 
proposed only to mention some of the most important, which wiU 
be enumerated by reference rather to the duties or services required, 
than to the several officers by whom they are to be performed. 
Some of the principal of these purposes, for which the services of 
pubHc officers are called in to the aid of parliament, relate, first, 
to the returns and elections of members ; second, to the prosecution 
and punishment of offenders ; third, to publishing or distributing 
the orders of the house ; fourth, to rendering assistance to the offi- 
cers of the house ; and, fifth, to the preservation of the peace in the 
place where the parliament is sitting ; to which may be added, 
$ixth, the right of the house of lords to call upon the judges for their 
opinions in matters of law. 



Section I. Returning Officers. 

1049. The election of members of the house of commons takes 
place in pursuance of writs issued out of chancery, directed to the 
proper officers ; who are bound by their official duties to cause the 
writs to be executed by the election of members, and to be season- 
ably returned into chancery ; where the writs and returns are placed 
m the custody of the clerk of the crown in chancery, who makes a 



418 LEGISLATIVE ASSEMBLIES. [PaKT Y 

record of the members so returned in a book kept by him for that 
purpose. 

1050. The retm-n thus made and the record of it as above men- 
tioned are the evidence of a member's right to his seat. But, as 
this record is made up from the returns, in the first instance, and as 
they are received, which cannot be altered but by the authority of 
the house ;i and, as the house which is the sole judge of the returns 
and elections of its members, may afterwards upon investigation 
find that a particular return is wrong, and that some other person 
should have been retm-ned ; it then becomes necessary, by analogy 
to legal proceedings in certain cases, that the record should be made 
to conform to the fact. Inasmuch, however, as the record is in the 
chancery, and the power to rectify it exists only in the house, the 
method of proceeding is for the house to direct the returning offi- 
cers, if necessary, and the clerk of the crown in chancery, to attend 
in the house, and there in its presence to make the requisite altera- 
tions. 

1051. These officers may also be directed to perform other 
official acts connected with the election and return of members, 
and are subject to the censm-e and punishment of the house for 
any neglect of duty. The election and return of members, having 
abeady been treated of at length, need not be further alluded to in 
this place. In the house of lords, where the representative peers of 
Scotland and Ireland are elected and returned in a manner analo- 
gous to the election and return of members of the house of com- 
mons, the returning officers are subject to the same control and 
direction of the house. 



Section IL Prosecution and Puniskment of Offenders. 

1052. In the prosecution and punishment of offences, which 
affect either house of parliament, or the persons of its members, the 
house for the most part proceeds duectly by its own authority and 
by the agency of its own officers ; ^ stiU, there are cases, in which it 
directs proceedings to be instituted' in other courts, either as a sub- 
stitute for, or in addition to, the punishments which it infficts.^ 

1 Comm. Jour. X. 377. quested the president of the United States to 

* See Lords' Jour. XX. 363. institute criminal, and directed the secretary 

* The house of representatives of congress, of the treasury to institute civil, proceedings 
in January, 1845, having previously dismissed agamst him for an embezzlement of the pub- 
its defaulting clerk, C. J. McNulty, then re- lie money. Cong. Globe, XII. 153- 



Chap. VI.] communications with public officers. 419 

There are also many cases, which are brong-ht to the knowledge of 
the house, either directly or indirectly, in which the house itself has 
no jurisdiction or an inadequate one to puriish ; or which it does 
not look upon as sufficiently important to be the subjects of 
impeachment ; but which, nevertheless, the public interest requires 
should be adequately punished. In all these cases, it is the usage of 
the two houses to take measures for the institution of prosecutions 
by the attorney-general (sometimes, but rarely, the solicitor-general 
is joined with him) in the courts of common law. In the house of 
commons, the course is either to order the attorney-general directly, 
or to address the crown to direct him, to institute the prosecution ;i 
in the house of lords, in which proceedings of this kind are com- 
paratively infrequent, the form is by direct order, and not by 
address.^ Some examples will now be given of the occasions on 
which prosecutions by the attorney-general have been ordered or 
addressed for. 

1053. I. Where, in the course of the investigations, instituted 
for a different purpose, the existence of some offence of a public 
character has incidentally come to light, the house has ordered a 
prosecution to be instituted. Thus, the commissioners for stating 
the public account, in 1693, having acquainted the house of com- 
mons, that they had taken the examinations of several witnesses 
touching an embezzlement of goods out of a French prize by the 
captain and lieutenant of the ship of war by whom the prize was 
taken, the house thereupon ordered the commissioners to deliver 
the examinations to the attorney-general, and the latter to take care 
that there be an effectual prosecution of the captain and lieuten- 
ant for their offence.'^ 

1054. II. Where, in the investigation of some abuse or griev- 
ance of a private character, with a view to a remedy therefor by 
way of legislation, it appears that offences have been committed 
which are deserving of punishment, the house has not only given 
leave for bills to be introduced to remedy the inconvenience com- 
plained of, but has also directed prosecutions at law. Thus, where 
certain petitions were presented to the house of commons in 1695, 
complaining that the petitioners, who were carriers and wagoners, 
and others in the habit of travelling the northern and western 

1 According to Sir Samuel Romilly, the other cases it proceeds by address. RomiUy, 

house orders a prosecution of its own author- 300. 

ity, when it thinks that a prosecution is neces- 2 Lords' Jour. XX. 357, 362. 

*ary, but, at tlie same time, that the propo- ^ Comm. Jour. XI. 53, 54, 65. 
Bitiou would not be agreeable to the king; in 



420 LEGISLATIVE ASSEMBLIES. [PaET V. 

roads, suffered great extortion and abuses from persons acting as 
informers, and demanding penalties under a doubtful constiuction of 
the statute 22 Charles II., for repairing highways ; and these peti- 
tions were referred to a committee, who, upon investigation, report- 
ed the facts at length, together with resolutions that the petition- 
ers had fuUy proved the allegations of then* several petitions, and 
deserved the relief of the house, and also that leave should be 
given to bring in a bill for explaining the act in question, and for 
preventing the abuses arising thereby ; the house agreed to the res- 
olutions, and also made an order that a copy of the report should 
be delivered to the attorney-general, and that he take care to pros- 
ecute the parties implicated thereby.^ So, where a committee, 
which \^^as appointed to inqune into the abuses practised in the 
manufacturing of tobacco, reported a statement of the facts relating 
thereto, the house thereupon gave leave for a bill to prevent frauds 
in the manufacture of tobacco, and also resolved upon an address 
to the king, to dnect the attorney-general to prosecute certain per- 
sons mentioned in the report, for the fi'auds of which they were 
alleged to be guilty .^ 

1055. III. Where, on inquiries bemg instituted into the con- 
duct of pubKc officers, or persons then or previously in some pub- 
lic employment, or into the management of a trust of a public 
character, it is ascertained that the parties implicated have been 
guilty of some misconduct, abuse, breach of trust, fraud, or other 
official delinquency, the house of commons has directed prosecu- 
tions to be instituted at law, instead of resorting to the extraordinary 
process of impeachment."^ The following are examples of this kind : 
In 1701, a committee having been appointed to inspect the con- 
duct of Edward Whitacre, solicitor to the admiralty, and having 
reported a statement of the facts relating thereto, the house there- 
upon resolved that the said Edward Whitacre had been guilty of 
divers ill practices, corruptions, and breaches of trust, in execution 
of his said employment.* In the same year, a petition being pre- 
sented from certain persons in behalf of themselves and other mer- 
chants in England and foreign parts, freighters and insurers of a 
certain ship, complaining of the escape of a prisoner from the Fleet 
prison, v^^ho was charged therein with taking out the goods, and 

1 Comra. Jour. XI. 397, 434, 513. See, also, villa, was, in the first instance, to direct a 
Same, XXL 682, 6S3. prosecution by the attorney-general. Subse- 

2 Coram. Jour. XVIIL 421. quently impeachment was resolved upon. 
* The intention of the house of commons, Comm. Jour. LX. 374, 421. 

with regard to proceedings against Lord Mel- * Comm. Jour. XIII. 616, 623. 



Chap. VI.] communications with public officeks. 421 

afterwards burning the said ship, upon wh'ch he had made great 
insurances ; and the committee to whom the petition was referred 
having reported the facts in the case ; the house thereupon resolved, 
that the warden of the Fleet, by suffering the parly to escape after 
he was legally charged in his custody for the said offence, was 
guilty of a notorious breach of duty.^ In the year 1699, the hoase 
of commons resolved upon the investigation and report of a com- 
mittee, that one Daniel Gwyn, who had been engaged in several 
public employments, had been guilty of divers notorious frauds 
and extortions, and was not fit to be continued or employed in any 
place under government.^ In the year 1729, a committee appoint- 
ed by the house of commons to inquire into the state of the jails, 
having made a report relative to the Marshalsea, — the house there- 
upon resolved that the keeper, and another person to whom he 
had farmed the gaol and the profits thereof, were guilty of inhu- 
man, cruel, and barbarous treatment of prisoners in custody for 
debt, of fraudulently and cruelly withholding certain charities from 
the poor prisoners, and of a high misdemeanor and breach of trust.^ 
In the year 1733, an inquiry was instituted by the house of com- 
mons, into the management of the affairs of a company known as 
the charitable corporation for the relief of the industrious poor, by 
assisting them with smaU sums upon pledges, at legal interest. The 
committee, to whom the inquiry was referred, reported that certain 
persons connected with the management of the affairs of the com- 
pany had been guilty of many notorious breaches of trust, and many 
indirect and fraudulent practices in the management of the affairs 
of the said corporation.^ An investigation having been made by 
the house of commons into the management of a lottery authorized 
by parliament for the purchase of the museum of Sir Hans Sloane, 
and for other purposes, the house addressed the king to direct the 
attorney-general to institute a prosecution against one of the com- 
missioners for a violation of the act and a breach of trust.'^ In all 
these cases, the house took measures, either by order or by address, 
to the king, for the prosecution of the parties implicated, by the 
attorney-general. 

1056. IV. In cases of breach of privilege, which are also offences 
at law, where the punishment in the power of the house to inflict 
would not be adequate to the offence, — or where the acts charged 
could not be investigated by the house without greatly delaying 

1 Comm. Jour. XHI. 826, 827, 828. •* Comm. Jour. XXH. 137. 

» Comm. Jour. XII. 680. 6 Comm. Jour. XXVI. 1001. 

» Comm. Jour. XXI. 376, 387. 

36 



422 LEGISLATIVE ASSEMBLIES. [PaET V. 

the public business, — or where, for any other cause, the house has 
thought a proceeding at law necessary, either as a substitute for, or 
in addition to, its own proceeding, the attorney-general has been 
directed to prosecute. Thus, where the serge ant- at-arms acquainted 
the house that two prisoners in his custody ^vho had been ordered 
the day before to be discharged, paying their fees, had refused to 
pay any thing, and had endeavored violently to make their escape ; 
and that ha\TJig thereupon sent them both to his house, they had 
broken several doors, and spoiled his goods, and endeavored forci- 
bly to go away, and had abused, assaulted, and beaten his servants, 
the house ordered the offenders to be committed to the Gatehouse, 
and the attorney-general to prosecute them for their misdemean- 
ors ; ^ where a committee, appointed to ascertain how letters ad- 
dressed to members came to be intercepted, reported that they had 
been taken out of the box every postday by one Richard Frogatt, 
the house thereupon proceeded to make further provision for the 
due delivery of the letters, and also directed the attorney-general to 
prosecute the offender at law;^ where it appeared that the hand- 
writing of naembers had been counterfeited on letters, the house 
resolved, that the king be addressed to direct the attorney-general 
to prosecute at la^w such persons as counterfeit or otherwise fraud- 
ulently make use of the handwrriting of members upon letters in 
order to prevent such letters from being charged 'with postage ; ^ 
where a printed paper was complained of and read, containing 
high reflections upon the honor of the house in general, and in par- 
ticular upon one of the members, the house resolved that the said 
paper was a false and scandalous libel, and directed the attorney- ■ 
general to prosecute the person by ^^hom it "was signed ; * where a 
complaint was made of a printed pamphlet which was brought up 
to the table and read, the house resolved, that the same was an 
impudent, malicious, scandalous, and seditious libel, falsely and 
most injuriously reflecting upon and aspersing the proceedings of 
the house, and thereupon addressed the Idng to direct a prosecution 
therefor against the authors, printers, and publishers, by the attor- 
ney-general ; ° ^\"here a crowd of people assembled in the neighbor- 
hood of the house and in the passages leading thereto, in a tumul- 
tuous and riotous manner, a.nd it appeared that one John Garrard 
had uttered very insolent words, inciting the said tumult against 
the members of the house ; it was resolved, that John Garrard 

1 Coram. Jour. XI. 730. * Comm. Jour. XIII. 230. 

2 Comm. Jour. XII. 287, 288. 5 Comm. Jour. XXVI. 304. 
s Comm. Jour. XXIV. 394. 



Chap. VI.] communications with public officers. 423 

hath incited tne rabble against the members of this house, in viola- 
tion of the rights and constitutions of parliament, — that he be 
committed to the Gatehouse therefor, — and that the attorney and 
sohcitor-general do effectually prosecute him for his said offence ; ^ 
and, on the occasion of the riots and tumults in London and West- 
minster in 1780, the house resolved, that the taking possession of 
the lobby and the avenues to the house, by a large and tumultuous 
assembly of the people, and maintaining the same, to the great 
obstruction of the business of the house, was a high violation of 
the privileges of the house, and that an address be presented to 
the Mng, to direct the attorney-general forthwith to prosecute aU 
such persons as shall be found to have been the instigators or abet- 
tors of, or active in promoting, the riots in the old palace yard and 
the avenues to the house.^ 

1057. V. The purpose of the trial of a controverted election is, 
of course, to determine which of two or more conflicting claimants 
is entitled to a seat ; but, in the investigation of cases of this kind, 
it frequently happens, that offences against the laws are proved to 
have been committed by the parties or persons in their interest, for 
the purpose of effecting or defeating an election; and, upon the facts 
being made to appear in such cases, it is usual for the house to 
direct prosecutions to be commenced at law by the attorney-general. 
Thus, prosecutions have been ordered in cases, in which it appeared 
to the house, that there had been illegal and indirect practices, in a 
certain borough, to examine persons upon oath, and to take affida- 
vits, in relation to the evidence they were to give at the bar of the 
house, touching the election therein ; ^ that a party had been guilty 
of bribery and corruption, in procuring an election of a burgess;* 
that a candidate had been guilty of bribery and corruption in en- 
deavoring to procure himself to be elected ; ^ that another had been 
guilty of corrupt, scandalous, and indirect practices, in endeavoring 
to procure himself to be elected, and for promoting a scandalous, 
villanous, and groundless reflection upon the last house of com- 
mons ; ** that certain persons had been guilty of an iUegal and cor- 
rupt conspiracy in relation to an election ; " that certain persona 
w^ere principal promoters and suborners of corrupt and wHful per- 
jury committed at an election ; ^ that there were strong grounds for 



1 Comm. Jour. XHI. 230, 231. 5 Comm. Jour. XHI. 711. 

2 Comm. Jour. XXXVII. 902. « Comm. Jour. XHI. 735. 

» Comm. Jour. XIII. 383. J Comm. Jour. XXXIII. 179. 

* Comm, Jour. XIII. 640. » Coram, Jour. XXXV. 538. 



424 LEGISLATIVE ASSEMBLIES. [PaUT V. 

belie^dng that a ^^-itness, in giving his evidence before an election 
committee, had been guilty of "^llful and corrupt perjury.^ 

1058. In some cases the house has thought proper to direct 
prosecutions to be instituted by the attorney-general, for offences 
not referring particularly to the house, or brought to Ught in the 
course of any parliamentary investigation, but in general affecting 
the government ; as, for example, for libels on the constitution,- on 
the king's government and person,-^ on the king and government ; ^ 
for high treason of which a member had been guilty before his 
election, and for which he had been expelled.^ 

1059. The above-mentioned cases are given merely as examples 
of the duties, which the t^A-o houses of parliament may require of 
the attorney and soKcitor-general, in the prosecution and punish- 
ment of offences. There are also other occasions on which the 
services of those officers have been required ; thus, in the course of 
the proceeding wMch terminated in the impeachment of Lord 
Melville, the attorney-general was directed to take measures for 
ascertaining and recovering any sums that might be due to the 
public from Lord Melville or Alexander Trotter, in respect of 
profits derived by them from moneys issued for naval purposes ; ^ 
and when actions were brought by Sir Francis Burdett against the 
speaker and sergeant-at-arms for arresting him on a speaker's war- 
rant issued by order of the house, the attorney-general was directed 
to defend the actions.'' Under this head, must be mentioned those 
cases, in which the ti^^o houses have thought proper to express their 
opinion of books, pamphlets, or other printed papers by ordering 
them to be publicly burnt by the common hangman.^ 

1060. When state prosecutions are carried on in parhament, in 
the form of bills of attainder, or bills of pains and penalties, or vi'hen 
other bills of analogous character are pending, the attorney and 
solicitor-general are requned to act as counsel in support of the 
proceedings. When bOls to inflict pains and penalties on George 
Kelly, John Plunkett, and the bishop of Rochester, were pending in 
the house of commons, in 1722 ; ^ to make void contiacts for the 

1 Coram. Jour. LXXV. 332. arms of the house of representatives in con- 

2 Comm. Jour. XXXIV. 464. gress, for arresting the plaintiff on a speaker's 

3 Comm. Jour. XXXII. 828. warrant, the liouse directed the attomey- 
* Comm. Jour. XIX. 562. general to defend the action. 

6 Comm. Jour. XVHL 467. * Comm. Jonr. MH. 259, 400; Same, X. 

6 Comm. Jour. LX. 221. 786, 787; Same, XII. 28, 224, 572; Same, XI. 

' Comm. Jour. LXV. 355. In the case of 667, 668. 

Anderson v. Dunn, (^Tieaton's Eeports, VI.) » Comm. Jour. XX. 180, 183, 186. 
which vras an action against the sergeant-at- 



Chap. VI.] communications with public officers. 425 

sale of the earl of Derwentwater's estate, in 1723 ; ^ and to disable 
Alexander Wilson from holding any office in Edinburgh, etc., in 
1737 ; ^ the attorney and solicitor-general were directed to take 
care, that the evidence against the parties should be ready to be 
produced to the house on the day appointed for the second reading ; 
and the attorney-general was ordered to appoint counsel, learned in 
the law, to produce and manage the evidence at the bar of the house 
on the hearing. In the house of lords, notice was ordered to be 
given to the attorney-general of the orders of the house relative to 
the said biUs ; " in order," as expressed in one instance, " for them 
to appoint counsel to methodize the evidence to be given in sup- 
port of the allegations, and to produce and examine the witnesses 
with relation thereto." ^ A bill to inflict pains and penalties upon 
Sir Thomas Rumbold and Peter Perring, being before the house of 
commons in 1782, the house dnected the attorney-general to pro- 
vide counsel to produce and manage the evidence on the second 
reading."* 



Section III. Publishing or distributing the Orders op the 

House. 

1061. It is the constant usage of the house of commons to direct 
the sheriffs to give notices to the members within their several 
counties of the orders of the house requiring their attendance ; as, 
that the speaker be desired to send his letters to the several sheriffs, 
with a particular order of the house inclosed, for the members' 
attendance at the meeting of the house after Christmas ; ° that the 
house be called over on a particular day, and that every member 
who shall then make default of attendance, whose excuse shall not 
be allowed by the house, shall be doubly assessed in the bill of 
subsidies, and that notice of this vote be sent by the clerk to the 
sheriffs of the several counties, to be by them communicated to such 
members of parliament in each county as are concerned ; '^ that the 
clerk prepare letters to be signed by the speaker, to be sent to the 
sheriffs, requiring them to signify to all the members that serve for 
the places within their respective counties, that they give their 
attendance ckn a particular day mentioned, and that the house is to 

1 Comm. Jour. XXL 891. * Comm. Jour. XXXVIH. IOC 4. 

* Comm. Jour. XXH. 887. 6 Comm. Jour. IX. 42. 

8 Lords' Jour. XXH. 144; Same, XXIV. « Comm. Jour. IX. 187, 463. 
Ill b. ; Same, XXV. 76 a. 

36* 



426 LEaiSLATIVB ASSEMBLIES. [PaET V 

be called over the day following, at which time, such as shall be 
absent wiU incur the displeasm-e of the house ; ^ that the speaker 
write letters to the sheriffs of the respective counties, to summon 
the members of the house no^v in the country, to attend their ser- 
vice in parhament, on a day named, notwithstanding any leave of 
absence, and that such as shaU not then attend shall be sent for in 
custody of the sergeant-at-arms.^ Sometimes, the order is directed 
to other officers besides the sheriffs ; as, that the speaker be desked 
to send his letters to the several sheriffs of the respective counties, 
and to the several mayors, bailiffs, and other proper officers in the 
several cities, boroughs, corporations, and cinque-ports, requiring 
them to give notice to all such members of this house that serve for 
such respective places, as have absented themselves from the ser- 
vice of the house without leave, to attend the house wdthin ten 
days.^ The ch'cular letters of the speaker require the sheriffs to give 
an account of the receipt of the letters, and of what they do there- 
upon, to the speaker.^ Sometimes the house directs that its orders 
Df a different kind shall be sent to the sheriffs and others, by way 
of publisliing them, as, where the house of commons directed that 
printed copies of the standing orders of the house respecting private 
bills should be sent to the sheriffs and clerks of the peace of the 
several counties of England and L-eland, to be by them severally 
preserved in and for the use of their respective counties.^ So, 
where the house having agreed upon certain resolutions relative to 
the trial and determmation of controverted elections, and having 
ordered the same to be standing orders of the house, directed the 
speaker to send copies thereof to the sheriffs of the several counties, 
to be by them communicated to the chief officers of the several 
cities, corporations, and boroughs, sending members of parliament, 
in their respective counties.^ The foregoing examples will be suffi- 
cient to give an idea of the manner in which the two houses avail 
themselves of the services of sheriffs and other officers for the dis- 
semination of then- orders. 



Section IV. RENDERmG Assistance to the Ofpicees oe the 

House. 

1062. It is the duty of the sergeant-at-arms and his assistants to 
execute the commands of the house, in taking offenders and others 

1 Comm. Jour. IX. 464. <i Comm. Jour. XI. 111. 

2 Comm. Jour. XI. Ill ; Same, LXYI. 3. ^ Comm. Jour. LXVI. 444. 
» Comm. Jour. IX. 672. o Comm. Jour. XV. 551. 



Chap. VI.] communications with public officers. 427 

into custody, in summoning witnesses, and also in keeping order in 
the house itself, and in the lobby, and passages leading thereto ; 
but, if there be occasion, the house may call in other officers to his 
assistance. Thus, when in the year 1678, the house of commons 
ordered Oates to be sent for to give in his testimony at the bar of 
the house, touching the plot and conspiracy mentioned in the king's 
speech, it ^vas ordered, at the same time, that the sergeant-at-arms . 
go with his messengers and bring Mr. Oates to the bar of the house : 
and all constables and other officers and persons whatsoever were 
required to be aiding and assisting him therein, if need require ; ^ 
where the house had previously issued an order to the sergeant-at- 
arms to send for certain persons in custody, for a breach of privi- 
lege, one of whom refused admittance to the deputies of the ser- 
geant, and spoke slighting and contemptuous words, touching the 
warrant ; the house thereupon ordered, that the party in question 
be sent for in custody, as a delinquent ; that the sergeant-at-arms 
be empowered to break open his house in case of resistance, and 
also to bring in custody all such as shall make opposition therein ; 
and to call to his assistance the sheriff of Middlesex, and all other 
officers as he shall see cause, who were required to assist him 
accordingly ; ^ where the house ordered certain books and pamphlets 
to be burnt by the hands of the common hangman, and directed the 
sergeant-at-arms to see that the order was executed, the sheriffs of 
London and Middlesex were also ordered to lend their assistance.^ 
The house has several times ordered the sergeant-at-arms, to keep 
the stairs and passagee to the house free from disturbance of 
lacqueys and footmen, to take into custody any lacquey or footman 
remaining or standing on the stairs, and, at the same time, directed 
the officers of the knight marshal to assist the sergeant in the exe- 
cution of the order.* So, where in consequence of the presence of 
a tumultuous crowd of people, in the lobby, the yeas on a division 
were unable to go forth, and the sergeant-at-arms informed the 
house, that it was not in his power to clear the lobby ; the speaker 
directed him to send for the sheriff and other magistrates of Middle- 
sex and Westminster to attend the house immediately ; who, 
attending accordingly, were directed by the speaker to use their 
utmost exertions to restore peace and good order ; which they suc- 
ceeded in doing, and the division took place.^ 

1 Comm. Jour. IX. 519. * Comm. Jour. IX. 249, 318, 386; Same, 

« Comm. Jour. VHI. 222. VIH. 253. 

« Comm. Jour. XI. 28, 224, 572. 6 Comm. Jour. XXXVII. 961. 



428 LEGISLATIVE ASSEMBLIES. [PaRT V. 



Section V. Preservation op the Peace in the Place where 
THE Parliament is sitting. 

1063. The existence of any external restraint, operating upon the 
two houses of parliament, is so inconsistent with the freedom and 
independence which are essential to the proper exercise of their 
functions, that, if continued for any length of time, it would become 
as revolutionary and destructive of the constitution (though in a 
different way,) as the forcible ejection of the members by a military 
force. Hence it is deemed, according to the law and usage of par- 
liament, to be a high crime and misdemeanor, for any number of 
persons to come to either house in a riotous, tumultuous, or dis- 
orderly manner, for the purpose of hindering or promoting the pass- 
ing of any measm-e there depending.^ In order to protect them- 
selves against any influences of this kind, the two houses are clothed 
with authority, which they have always exercised when occasion 
required, to call upon the magistrates and other peace-officers of 
the place where they are sitting ; who are then especially obliged 
to restore order, and to preserve the public peace, by means of the 
exercise of their ordinary official functions.^ Thus, in 1696. a 
tumultuous crowd of people coming into the Palace yard, and West- 
minster Hall, and passages towards the house of commons, and into 
the lobby of the house, the house ordered that the justices of the 
peace of Middlesex and Westminster, and Southwark, and mem- 
bers for the city of London, do go and endeavor to disperse the 
said multitude, and that the sheriffs and justices of the peace of 
London and Middlesex do immediately attend the house for the 
same purpose ; ^ in 1699, on the occasion of a similar tumultuous 
assembfing of persons about the house of commons, it was ordered, 
that the justices of the peace of Middlesex and Westminster do go 
forth and disperse the said riotous crowd, and that the justices of 
the peace of the city of Westminster do immediately attend the 
house and bring the constables with them; and they attending 
accordingly were called in, and, at the bar, the speaker, by order of 
the house, acquainted them with the said tumultuous riot ; and that 
the house did expect, that they should go immediately and disperse 
the same, and give the house an account of what they did therein ; 
and that they do commit such as they find most active in the said 

1 Coram. Jour. XL 667; Same, XIH. 230. s Comm. Jour. XL 667. 

a Lords' Jour. XXXH. 188. 



Chap. VL] communications with public officers. 429 

riot, and take care to prevent any such riots for the time to come ; ^ 
in 1714, the house of commons being informed, that a crowd of 
people had, for several days past, appeared together in a tumultu- 
ous and riotous manner, in the Palace yard, Westminster Hall, and 
the passages leading to the house ; it was ordered, that the sheriffs 
of London and Middlesex, and the high bailiff of the city of West- 
minster, do take care to disperse any disorderly assembly of persons, 
crowding to the places above mentioned, and to prevent any such 
tumultuous resort for the future ; ^ again, in 1771, on the occasion 
of the proceedings against Brass Crosby the lord mayor of London, 
the house was beset by a tumultuous crowd of people, who inter- 
rupted the members in their coming into the house, and similar 
measures were resorted to for dispersing the crowd and clearing the 
passages ; ^ and lastly, when during the riots in 1780, the lobby of 
the house of commons was filled by a tumultuous crowd, which 
the serge ant-at-arms was unable to disperse, so as to enable the 
yeas to occupy it on a division, the speaker directed him to send 
for the sheriff and other magistrates of the county of Middlesex 
and city of Westminster to attend the house immediately ; and, on 
their attending at the bar, informed them, that a tumultuous assem- 
bly of people had surrounded the house, and rendered it very diffi- 
cult for the members to come into or go out of the house, which 
disorder had continued for many hours ; that it was their duty to 
preserve the peace ; and for that purpose they had authority to call 
forth, if necessary, the whole power of the county to then* assist- 
ance ; the speaker therefore directed them to use their utmost 
exertions to restore peace and good order.* Several occasions have 
occurred, on which similar proceedings have taken place in the 
house of lords;^ 

1064. Besides looldng to the local magistrates for protection 
against those tumultuous and riotous assemblages, which are sub- 
versive of the freedom and independence of parliament, the two 
houses have for a long time been in the practice of availing them- 
selves of the same authorities, for the preservation of order and 
quiet in the neighborhood of their place of sitting, and for securing 
a free and unobstructed passage for the members to and from the 
two houses.^ In 1709, orders were first made in the house of com- 

1 Comm. Jour. XIH. 230. Same, XXXH. 147 b., 187 b. ; Same, XXXVT. 

2 Comm. Jour. XVII. 661. 142 b. 

3 Comm. Jour. XXXIII. 285. 6 Resolved, "that according to the known 
* ConiM . Jour. XXXVII. 901. laws and usage of parliament, it is the un- 
» Lords' Jour. XXXL 206, 207, 209, 213 ; doubted right and duty of the peers of Great 



430 LEGISLATIVE ASSEMBLIES. [PaRT V. 

mons requiiing the constables and other officers of IVIiddlesex and 
Westminster ^ to take care, that during the session of parliament, 
the passage through the streets between Temple Bar and West- 
minster Hall be kept free and open, and that no obstruction be 
made by cars, drays, carts, or otherwise, to liinder the passage of 
the members to and from the house ; that the constables in waiting 
take care that there be no gaming or other disorders in West- 
minster Hall, and that there be no annoyance by chairmen, foot- 
men, or otherwise, therein, or thereabouts.^ These orders were 
renewed in succeeding sessions,^ and are now regularly adopted at 
the commencement of every session.* Similar orders are made 
also in the house of lords, with respect to keeping the passages 
leading to the house free from obstruction.^ 

Section VI. Eight of the House oe Lords to call on the 
Judges to give their Opinions on Questions of Law. 

1065. In the house of lords, the judges of the courts of king's 
bench and common pleas, such barons of the exchequer as are of 
the degree of the coif, the master of the rolls, the attorney and 
solicitor-general, and the king's sergeant-at-law, attend, as assistants. 
This attendance, which was formerly enforced at all times, is now 
only occasional, when summoned by a special order. The princi- 
pal pm-pose of the attendance of the judges is, to give their opinions 
on questions of law, when demanded of them by the house, with 
reference to all subjects there pending whether of a judicial or 
legislative character. They deliver their opinions, either separately, 
or by the mouth of one of their number, and either with or without 
reasons, according to circumstances. The usual course is, for the 
house, on motion, to order that certain questions be proposed to the 
judges, and that they be summoned to attend to give thek answers 
at a particular time ; which may be enlarged at the request of the 
judges, or for the convenience of the house ; but, if, in the mean 
time, a prorogation takes place, the order is discharged, and must 
be renewed in the next session, if the opinions of the judges are 

Britain, in parliament assembled, to give such ^ It is hardly necessary to remark that the 

orders as may from time to time be found parliament was sitting within the city of West. 

necessary to disperse or suppress any force minster and county of Middlesex. 

which shall obstruct their coming to, remain- " Comm. Jour. XVI. 213. 

ing in, or returning peaceably from, this house, •'' Comm. Jour. XVH. 3, 279, 476. 

or tend to inten-upt the freedom of parha- * Comm. Joiir. LXXV. 6, 110. 

mentary proceedings." Lords' Jcor. XXXH. * Lords' Jour. LXVI. 6, 7. 

1(!8. 



Chap. VI.] communications with public officers. 431 

still desired.^ There appears to be but a single exception to the 
questions to which answers may be demanded of the judges, 
namely, a question of privilege, in reference to which the judges 
declined to answer in Thorpe's case, in the 31 Henry VL, and to 
which they have never since been interrogated. The reasons given 
by the judges are thus expressed : " For it hath not been used 
aforetime, that the justices should in anywise determine the privi- 
lege of this high court of parliament ; for it is so high and so mighty 
in this nature, that it may make law, and that that is law, it may 
make no law ; and the determination and knowledge of that privilege 
belongeth to the lords of the parliament, and not to the justices." ^ 
The principle, embodied in these reasons, namely ; that privilege 
of parliament is what either house declares to be so, has been very 
strongly questioned, if not exploded, in modern times ; and as the 
doctrine is now held, that the law of parliament is part of the law 
of the land, and cognizable on proper occasions by the courts of 
law ; it may perhaps be doubted, whether, if the house of lords 
should now propound a question relative to the law of privilege, 
the judges would not feel themselves bound to answer. 



Section VII. Right to refer Matters to Public Officers. 

1066. The house of commons exercises the right to refer a mat- 
ter pending before it to some public officer, or board, for a particu- 
lar purpose.^ The same authority is exercised by the house of 
representatives in congress when it refers petitions to the investiga- 
tion of the heads of departments or the attorney-general. This 
practice was much more common formerly than it has been of late 
years. A petition being referred in this manner to the attorney- 
general, on the 28th of January, 1820, with a request to that officer 
" to report his opinion thereupon " to the house, he declined com- 
plying with the request, and returned the petition and papers to the 
house of representatives, on the ground that it did not come within 
the duties of his office as prescribed by law, to act in the same 
relation of legal counsellor to the house, which he held towards the 
president and heads of the departments.'* Since this communica- 
tion, the practice of referring petitions to the attorney-general 
appears to have been discontinued. 

1067. In these cases, the petitions, referred to public officers, are 

» Hans. (1), VL 167. s May, 511, 527; Comm. Jour. XCIL 356. 417, 51ft. 

» Comm. Jour. X. 402. * Attorneys- General's Opinions, 242. 



432 LEGISLATIVE ASSEMBLIES. [PaRT V 

reported upon by them, and their reports are then referred, with the 
petitions to which they relate, to the appropriate committees, who 
consider and report thereon, in the usual manner. Petitions are 
also sometimes referred to the president of the United States ; ^ but 
this reference apparently takes place, not that such petitions may 
be reported upon, but because they belong more properly to his 
cognizance ; as for example, "^^here a number of citizens presented 
a memorial to congress praying a remission of the punishment 
inflicted on William L. Mackenzie for a violation of the neutrality 
laws of the United States.^ 



CHAPTER SEVENTH. 

or PETITIONS. 



Section I. Of the Right op Petition. 

1068. It is chiefly by means of petitions, that the people, in their 
character of constituents, are brought into communication with the 
two houses of parliament, and especially with the house of com- 
mons, as then* representatives. So far as the legislative body is 
elective, so far the constituents, by then* votes for particular can- 
didates, express their opinion of public measures and pohcy. In 
certain cases, also, and to a certain extent, and for particular pur- 
poses, they have the power to instruct their representatives. But 
neither of these modes of communication is adequate to all the 
occasions, on which it is desirable that the wishes of constituents 
should be made known to their representatives. Petitions alone 
enable constituents to resort to the representative body, whenever, 
in the judgment of any one or more of them, it is necessary or 
proper to do so, with reference to any matter either of a public or 
private nature, w^hich is v\dthin the jurisdiction and functions of the 
legislature. 

1069. A petition is an instrument in writing, addressed by one 
or more individuals to some public tribunal or authority, in which, 

» J. of H. V. 560 ; Cong. Globe, ^^^. 292. "- Cong. Globe, YHI. 292. 



Chap. VIL] petitions. 433 

on the ground of certain facts therein set forth, the petitioners 
request the official interference of such tribunal or authority, either 
for the particular advantage of the petitioners, or for the correction 
of some pubHc grievance. 

1070. When the object of a petition is the particular benefit of 
the petitioner, it is a private petition ; when it is for the redress of 
some public grievance, in which the petitioner has no particular or 
individual concern, the petition is a public one. 

1071. In both cases, a petition may emanate from a single indi- 
vidual ; or it may be the act of as many persons as have a common 
interest in the subject, and are willing to unite together for the pur- 
pose of prosecuting it ; or there may be as many separate petitions 
relating to the same subject, as there are individuals ; or there may 
be several similar petitions, each signed by several persons. 

1072. The right of subjects to petition their rulers for a redress 
of grievances, either public or private, is acknowledged as a funda- 
mental principle of the English constitution, and has been uninter- 
ruptedly exercised from the earliest periods. The right to address 
the two houses of parliament in this manner is coeval with their 
existence ; but especially have petitioners applied themselves to the 
house of commons, who, as the more immediate representatives of 
the people, have always, in the forcible language of Mr. Speaker 
Abbott, " opened their doors wide for receiving the petitions of aU 
his majesty's subjects, with respect to grievances, whether real or 
imaginary." ^ This right rests on no written charter, like that of 
petitioning the crown ; but, as was said by Mr. Fox, " No man 
could question the subjects' right to present petitions to their repre- 
sentatives ; because, it was idle to suppose, that when a stipulation 
had been made by the bill of rights that the subjects should, in 
all cases, have a right to petition the crown, they had not an equal 
right to petition the house of commons, their own representatives." ^ 
The right of petition is stated in the following terms by Mr. Hat- 
sell : — " To receive, and hear, and consider the petitions of their 
fellow-subjects, when presented decently and containing no matter 
intentionally offensive to the house, is a duty incumbent on them, 
antecedent to all rules and orders that may have been instituted for 
their own convenience. Justice and the laws of their country 
demand it from them." ^ 

1 Hans. (1), VIII. 529. Robert C. Winthrop, in the house of represen- 

2 Pari. Reg. XXHI. 113. tives of the United Statts on the 23d and 24th 
» Hatsell, in. 240. As to the right of peti- January, 1844. 

tion, in genei-al, see also the speech of the Hon. 

37 



434 LEGISLATIVE ASSEMBLIES. [PaRT V 

1073. There can be no doubt, that, in this country, the right of 
petition is as sacred, and as weU. established, as it is in England, 
even where it is not secured by constitutional provisions. But in 
all the American constitutions, except those of the States of Vir- 
ginia, North Carolina, South Carolina, Georgia, and Louisiana, it 
is secured in the amplest manner, usually in the following terms 
contained in the constitution of Florida, namely : — " The people 
have a right, in a peaceable manner, to assemble together to consult 
for the common good ; and to apply to those invested with the 
povi^ers of government for redress of grievances, or other proper 
purposes, by petition, address, or remonstrance." 

1074. It is with respect to measures of a public character, that 
the right of petition has been deemed the most sacred, and has been 
guarded with the most care ; as it is by this means only that con- 
stituents can express their opinions upon great national questions, 
and bring their opinions to bear directly upon the legislative power. 
Petitions of this description do not rest upon the testimony of ^\dt- 
nesses for their facts ; nor do they trust to the ability and eloquence 
of counsel for their arguments and illustrations. They are simply 
to be regarded as expressing the deliberate convictions of the peti- 
tioners, upon facts T\'^hich are notorious or accessible to aU, and 
founded in arguments and considerations which appeal to the 
reason and judgment of all. 

1075. The legitimate effect, therefore, of their representations, 
depends' upon two considerations, namely, the influence which 
popular opinion is entitled to have upon the acts of government, 
and upon the facts and arguments which petitioners bring forward 
in support of their opinions. These are interesting topics of inquiry, 
which, however, it would be out of place to consider in this treatise, 
any further than may be necessary to determine A;vhat proceedings 
ought to take place ^^dth reference to public petitions, in order that 
they may have their proper effect.^ So far, then, as the first ground 
is concerned, it is important to know the number, the character, and 
the situation and circumstances of the petitioners ; the degree of 
deKberation with which their opinions have been formed ; the abil- 
ity which they possess for judging of the subject ; the means that 
have been resorted to for obtaining their signatures ; the freedom 
or constraint with which they may have acted ; and to have regard, 

1 Assuming that the object of government less influence the popular opinion, as distin- 

is the good of the people, it might be said, not guished from the government, ought to have 

less truly than paradoxically, that the more upon the representatives, and vice versa, 
popular the character of the govemment, the 



Chap. VIL] petitions. 435 

also, to the nature of the subject, as being one upon which discus- 
sion by an intelligent and conscientious body of representatives can 
throw much or little light. In regard to the second gi-ound, — the 
facts and arguments adduced by petitioners, — they are of equal 
weight, and are consequently entitled to equal influence, whether 
the petitioners be few or many, and whatever may be their condi- 
tion or circumstances. 

1076. If the views above expressed are correct, it is manifest, 
that the right of petition on the part of constituents requires noth- 
ing more, as a matter of parliamentary duty, on the part of repre- 
sentatives, than that they should receive all proper petitions, and 
should allow the contents to be brought to their knowledge, in the 
fullest manner. If any thing further than this is demanded, — if it 
is urged, that the voice of the people, as expressed in their petitions, 
ought to prevail, and that the legislature ought to do whatever it is 
required by numerous bodies of petitioners to do, — then the deliber- 
ative faculty of the legislative body must necessarily be destroyed ; 
for its duty would be to attend to the demands of the people, not 
for the purpose of weighing and considering them, but for that of 
granting them without any consideration or deliberation at all.^ 
What effect the petitions of the people ought to have upon the de- 
liberations and conduct of their representatives, is a question which 
does not belong to the subject of this treatise. 

1077. It is only in the character of petitioners, that constituents 
are in strictness entitled to offer their opinions and views regarding 
public measures to their representatives. In a petition, the state- 
ments of the petitioners are received as the ground of the prayer 
which they make. A memorial, which is similar in its statements 
and allegations to a petition, but is unaccompanied by a prayer, is 
said to be objectionable in point of form, because it assumes to 
speak as an equal and to advise the legislature as to its duties, 
without any particular object in view ; but such papers have never- 
theless been received as petitions, when there was no other objec- 
tion to them, but in point of form, and they contain language 
equivalent to a prayer.'^ A remonstrance, which may be regarded 
as a similar representation, unaccompanied by a prayer, and intend- 
ed to express opposition to the passing of some act, or the adoption 
of some pending or contemplated measure, is equally objectionable 
in point of form, and for the same reasons. Papers with this title, 
when drawn up in respectful language, and amounting substantially 

1 Pari. Reg. XXXII. 388. 2 Coram. Jour. LXVII. 398. 



436 LEGISLATIVE ASSEMBLIES. [PaRT V 

to a petition against some proposed or pending measure, have 
been received as petitions.^ But, in general, it appears to be the 
usage, especially when the object is to call in question the proceed- 
ings of the house, to reject papers of this description.^ K protest is 
simiilar in character to a remonstrance, but expressed in stronger 
language.'^ A declaration against any measm-e does not seem to 
be different from a protest or remonsti-ance.* Papers bearing any 
of these titles, if they contain a prayer, are received as petitions.'^ 
It may be observed in general, that the objections to remonstrances, 
protests, etc., are, for the most part, merely formal. The same 
statements, which they contain, may be put into the form of peti- 
tions, and are then receivable.^ A paper expressing approbation of 
the proceedings of the house is equally objectionable with a pro- 
test or remonstrance, and is not receivable, unless it bears the form 
of a petition.' 

1078. While the house is careful, on the one hand, to respect 
the right of petition, in whatever form it may be exercised, it is 
equally carefal, on the other, to have due regard to its own honor 
and dignity ; and, therefore, if the allegations of a petition turn out 
to be false, frivolous, groundless, vexatious, or malicious, the peti- 
tioners are Uable to the censure and punishment of the house ; of 
which, many examples are found in the journals.^ 

1079. The right of petition is not subject to any of the formal 
or technical rules as to parties, by which the proceedings in courts 
of law are governed. AU persons, of whatever condition, and un- 
der whatever circumstances, — married women, infants, aliens, — 
may petition, provided only that they have sufficient understanding 
to know what they are doing ; if they have not understanding 
enough to act for themselves, their guardians, if they have any, or 



1 Comm. Jour. XLVl. 388; Pari. Eeg. XXIX. tives by means of remonstrances is secured. 
63, 64. It appears from the debates, that the the above-named formal obligations cannot 
document here refeiTcd to was entitled by of course apply. 

the parties a remonstrance; in the journal it ^ Hans. (3), LXIV. 423; J. of H. 25th Cong, 

is entered as a petition. 1st Sess. 83. Instraments, with all the objec- 

2 Hans. (3), XL. 1360; Same, (3), LXV. tionable titles mentioned above, and many 
1225; Pari. Reg. L 467, 473. others, are found inscribed on the journals of 

3 Pari. Reg. XL. 228. The statement on congress; but these entries afford no evidence 
page 225, that this protest was ordered to lie of the contents of the petitions in question; 
on the table as a petition, is a mistake; no but it may be stated generally, that the strict 
such entry appears on the journal. See rule on the subject does not appear in all iu- 
Comm. Jour. L. 87. stances, to be applied in congi-ess. 

* Comm. Jour. LXXI V. 391. ^ Comm. Jour. XIL 146, 170, 628, 682 ; Same, 

sPari. Reg. (2), XVIL 63. XIIL 884; Same, XXIL 897; Samf., XXXU. 

« In those of the States in which the right 855; Same, XXX VUL 315. 
of constituents to address their representa^- 



Chap. VIL] petitions. • 437 

their friends, if they have no guardians, may petition for them. In 
regard to proceeding on private petitions, the relation subsisting 
between the petitioner and others interested in the subject will, of 
course, be regarded. The petitions of foreigners may be received, 
provided they reside in England, and the subject of their complaint 
originated in the acts of British authorities,^ or the prayer of their 
petition is within the jurisdiction of the house, as, for example, for 
naturalization. In those parts of this country, in which the institu- 
tion of domestic slavery is established, the petition of slaves is not 
admissible.- But a petition purporting to come from people of 
color does not appear to be equally objectionable.'^ 

1080. In the earliest periods of parliamentary history of which 
there are any authentic memorials, before the constitution of parlia- 
ment had assumed its present form of two distinct branches, and 
while yet the modern distinction between judicial and legislative 
functions was hardly if at all perceived, the subjects were accus- 
tomed to present their petitions to the great councils of the nation, 
for the redress of their grievances, principally of a private character, 
which were supposed to be beyond the jurisdiction, or which it was 
feared, might be beyond the power, of the ordinary tribunals to 
redress. 

1081. The mode of proceeding upon these petitions, as they 
were mostly for the redress of private wrongs, was judicial rather 
than legislative. Receivers and triers of petitions were appointed, 
at the commencement of each parliament, and proclamation was 
made, inviting aU people to resort to the receivers. These were 
ordinarily the clerks of the chancery, afterwards the masters in 
chancery, and still later, some of the judges, who, sitting in a public 
place accessible to the people, received their complaints and trans- 
mitted them to the auditors or triers. The triers were committees 
of prelates, peers, and judges, who had power to call to their aid 
the lord-chancellor, the lord-treasurer, and the sergeants at law. 
The petitions being examined by the triers, they resolved upon the 
})roper disposition to be made of them ; in some cases, the petition- 
ers were left to their remedy before the ordinary courts ; in others, 
their petitions were transmitted to the judges on the circuit ; in 
others again, in which the law afforded no redress, they were sub- 
mitted to the high court of parliament. In later times, and after 
the separation of the two houses, petitions continued to be received 



1 Hans. (3), XHI. 1115. s J. of H. HI. 550. 

a Cong, Globe, IV. 175. 

37* 



438 • LEGISLATIVE ASSEMBLIES. [PaRT V. 

ill the lords in the same manner, until the functions of receivers and 
triers became superseded by the immediate authority of the house, 
or by committees, whose office was similar.^ Receivers and triers 
of petitions are still appointed in the house of lords, at the opening 
of every parliament, precisely as in the most ancient times, though 
they have long since ceased to exercise any of the functions of their 
office. 

1082. In the reign of Henry VI. petitions begun to be addressed 
in considerable numbers to the house of commons alone. These 
petitions were now, in consequence of the extension of the remedial 
jurisdiction of the court of chancery, more in the nature of petitions 
for private bills, than for equitable remedies for private wrongs ; 
and the orders of parliament upon them can only be regarded as 
special statutes of private or local application. As the limits of 
judicature and legislation became defined, the petitions applied 
more distinctly for legislative remedies, and were prefeiTcd to par- 
liament through the commons ; but the functions of parhament, in 
passing private biUs, have always retained the mixed judicial and 
legislative character of ancient times.^ In the reigns of James I. 
and Charles I. — and especially after the establishment of the grand 
committees, as they were called, for grievances, courts of justice, 
trade, and religion, in the latter, — when the house of commons 
first began to turn its attention to pubhc affahs, and petitions and 
complaints relating thereto were much more frequent than they 
had ever been before, petitions were presented directly to the com- 
mittee and received and considered by them, without the previous 
intervention of the house. This practice continued through the 
commonwealth. On the restoration, it became the usage of both 
houses to receive petitions in the first instance, and to consider 
them, and only to refer the examination of them in particular cases 
to committees.^ 

1083. Before proceeding further with the subject of petitions, it 
will be useful to point out, with more distinctness, the difference 
between those which are private and those which are pubhc. A 
private petition is one, which prays for some proceeding on the part 
of parliament, usually the passing of a bill, for the particular interest 
or benefit of any person or persons, pubhc company, or corporation, 
municipal or otherwise, or of a parish, city, county, or other locahty ; 
or which prays that any such bU], when introduced, may not pass, 

1 May, 382. s May, 382. 

2 May, 382. 



Chap. VIL] petitions. . 439 

or that the petitioners may be heard against it. All petitions, which 
have in view a measure of national import, or one in which the 
whole community is interested, are public petitions. Private peti- 
tioners are allowed to prove their statements by evidence, and to 
be heard by themselves or their counsel. Public petitioners have 
no such right. The former have in view some specific, definite, 
object relating to themselves. The latter merely express their opin- 
ion, including of course, their wishes in reference to some public 
measure. The weight and influence of a private petition depend 
upon the facts which it sets forth, and the evidence by which they 
are substantiated. The respect due to public petitions must, of 
course, depend not so much upon the statements of fact, and of 
argument, which they contain, as upon the number and the charac- 
ter of the petitioners. Private petitions, in ordinary times, and in 
countries where a proper judicial system is established and in opera- 
tion, cannot reasonably be expected to exceed a very moderate 
number. Public petitions, especially in times of excitement, cannot 
be limited as to number or magnitude. It will be seen, hereafter, 
that this difference in the character of the two classes of petitions, 
has necessarily led to very important differences in the manner of 
treating them. 

Section II. Op Petitions as to their Form. 

1084. The several subjects, which require to be noticed with 
reference to the form of a petition, relate, ^r^^, to. the material sub- 
stance upon which, and the manner in which, a petition is drawn 
up ; second, to the different parts of a petition, namely, the super- 
scription or direction, the designation of the parties, the general 
allegation, and the prayer ; third, to the signing ; and fourth, to 
matters extraneous or annexed to a petition. 

Article I. As to the Material upon which, and the Manner in 
which, a Petition is to be written. 

1.085. The material required for this purpose is either parchment 
or paper ; ^ on one or more skins or sheets of which, but, if the 
latter, they must be so joined together as to form one whole,- the peti- 
tion must be written in the English language ; ^ or, if in any other, 

» 5I:iy, 384. * Coram. Jour, LXXVI. 173. 

2 Hans, (1), XXXIII, 215, 393. 



440 LEGISLATIVE ASSEMBLIES. [PaRT V. 

it must be accompanied wdth a translation, T\'hich the member pre- 
senting it states to be correct.^ This rule is one w^hich, of course, 
admits of occasional relaxation ; but whether in those States where 
the language spoken by a portion of the inhabitants is not English, 
and Txhere the laA\'s, or legal proceedings, are published in tvvo or 
more languages, it is applicable, may admit of some question. 

1086. In the commons, it is an established rule, that a petition 
must be wiitten and not printed - or lithographed.^ Pre\dous to 
the year 1656, it appears to have been allowable, either to present 
petitions in a printed form to the committee, who were then gener- 
ally authorized to receive them; or for petitioners to cause their 
petition, immediately upon being presented, to be printed and dis- 
tributed among the members of the committee.* In that year an 
order was made, that no private petition should be printed before 
being presented to the house.^ Whether this order was deemed to 
be in force or not, after the dissolution of the parliament at \vhich 
it v,'as made, does not appear ; but it seems certain, that it soon 
became the established practice of the house of commons to decline 
receiving any petition, either private or public, wMch was in a 
printed form ; ^ and such is understood to be the established rule at 
the present time. In the house of lords, though the rule seems to 
be the same, it has not been so strictly observed ; a prmted petition, 
in favor of the Catholic claims being received in 1813, " but not to 
be drawn into precedent ; " " and, again in 1837, another was re- 
ceived, on which occasion. Lord Lyndhurst said, that hundreds and 
thousands of printed petitions had been presented and received in 
that house on the subject of the abolition of slavery.^ 

1087. A petition must also be free from erasures and interlinea- 
tions ; ^ on the ground, that, where any such alteration appears on 
the face of the petition and is not explained, it is a circumstance of 
so equivocal a character, that, in point of form the petition can no 
longer be considered as that of the persons by -svhom it is signed.^'^ 
But this circumstance is susceptible of explanation ; and if it ap- 
pears, that the alteration was made by the petitioners themselves, 
or with their knowledge and consent, — the member presenting the 

1 Comm. Jour. LXXW. 189. e Parf. Reg. XXXV. 372, 373. 

2 Comm. Jour. LXXH. 128, 156, 280. ' Lords' Jour. XLIX. 298 a. 

3 In the legislative assemblies of this coun- « Hans. (3), XXXVII. 211. 

try, lithographed or printed petitions are con- ^ Coram. Jour. LXXXH. 562 ; Same, 

stantly received without objection. LXXXVI. 768. 

* Lake V. King, Saunders's Reports, L 131. i" Hans. (1). XEI. 816; Same, (3), V. 1267 

See Paragraph 357. 1268. 

5 Comm. Jour. ^TI. 427. 



Chap. VIL] petitions. 441 

petition so stating the fact to be, — such petition is to be regarded 
as that of the signers and may be received.^ 



Article II. As to the several parts of a Petition. 

1088. Petitions are to be addressed to the house, in which they 
are to l)e presented ; ^ if to the house of lords, the form is : To the 
right honorable the lords spiritual and temporal in parliament assem,' 
hied; if to the house of commons: To the honorable the commons 
[or knights^ citizens^ and burgesses'] of the united kingdom of Great 
Britain and Ireland, in parliament assembled;^ and any essential 
variation from this form, as, to address a petition " to the upper house 
of parliament, denominated the lords spiritual and temporal, in par- 
liament assembled," * or to the lords spiritual and temporal and 
commons in parliament " assembled," ^ or, " to the lords temporal " 
alone,*^ will be such an irregularity as to prevent the reception, or 
make it necessary to w^ithdraw the petition. 

1089. The second part of a petition is its title, or the designation 
which the petitioners give to it and to themselves, which should be 
in this form : The humble petition of [the names or other descrip- 
tion of the petitioners being here inserted] humbly sheweth. It is 
irregular for the parties to entitle their proceeding a remonstrance, 
or protest, or memorial alone, because it can only be received as a 
petition ; but it is not fatal to do so, because if the paper contains 
the other requisites of a petition, it may be received as such." It is 
also irregular to entitle the paper " The petition " merely, omitting 
the word " humble," or to use the terms " respectfully sheweth," 
instead of " humbly sheweth," and this irregularity has, for the most 
part,^ but not always,^ made it necessary to withdraw the petition. 
In regard to the designation of the parties, if there is but a single 
petitioner, or some few only, the name and addition of each are 
usually given ; if the parties are numerous, they commonly describe 
themselves in general terms, as inhabitants, freeholders, silk manu- 
facturers and throwsters, parishioners, resident householders, work- 

1 Hans. (1), V. 1267, 1268. 5 Lords' Jour. 44, 642 b., 644 a. 

2 The legal designation of our legislative ^ Lords' Jou.r. 24, 122 b. 

assemblies is given in the several constitu- "< P. M. Pari. Reg. I. 467, 473; Same, (2), 

tions; and they may be known so readily, XVII. 63; Same, XL. 228; Same, XXIX. 63, 

that they need not be repeated in this place. 64; Hans. (3), XL. 1360; Same, (3), LXV. 

A petition, which is addressed to both branches, 1223. 

may be considered as if addressed to either. * Lords' Jour. 52, 635, 671; Hans. (3), 40| 

3 May, 384. 815. 

« Hans. (1), 33, 300, 542. . » Hans. (1), 37, 438. 



442 LEGISLATIVE ASSEMBLIES. [PaET V. 

men, members of a lodge of odd fellows ^ or of a political or other 
union of a particular place. K petitioners give themselves a desig- 
nation to which they are not entitled, this is an irregularity, on 
account of which it may be necessary to withdraw the petition.^ 

1090. The third part of a petition, or the body of it, contains 
the general allegations or statements upon which the petitioners 
ask the interference of parhament. This part will be considered 
more particularly hereafter, when treating of petitions as to their 
substance ; at present, one circumstance only will be alluded to, 
namely, the length of a petition, or the quantity of matter which it 
contains. A petition should contain a statement of all the material 
facts upon which the petitioner relies to substantiate his claim for 
relief, or to induce the house to the particular com-se which he de- 
sires to have taken ; and, in making this statement, it is as much 
his interest, as it is his duty, to set forth the facts, without any un- 
necessary minuteness of detail, and in as brief and intelligible a 
manner as possible; otherwise the very impossibility of reading 
and considering the petition, consistently with the transaction of 
other public business of equal importance, will prevent it from be- 
ing read or considered at all, or, at least, wdth {hat attention which 
the subject of it may perhaps deserve ; and thus the right of peti- 
tion may in some sort be defeated by the very excess of its exercise. 
The great length of a petition, however, ought not, perhaps, to be 
considered as an objection to its reception, so much as to the sub- 
sequent proceedings upon it ; and, in every case, the house must 
be governed by a somid and -^dse discretion, as to the subsequent 
proceedings ; on the one hand, not placing its own convenience in 
competition mth the exercise of the right of petition ; and, on the 
other, not sacrificing the rights or interests of one portion of its con- 
stituents for the sake of gratifying the humor, or treating with in- 
dulgence the ignorance or unskilfulness, of another.^ 

1091. The last part of the petition is the prayer, in which the 
particular object of the petitioner is expressed. This is essential, in 
point of form, to constitute a petition ; and, without it a document 
cannot be received in that character.* A paper containing state- 
ments of facts however important, or arguments on any topic, how- 
ever admirable they may be, is not entitled to the consideration of 
the house, unless the petitioner has some object in view, further 

1 Hans. (2), IV. 221. * May, 384; Hans. (1), VIII. 684; Same, (2) 

s Hans. (1), X. 685. XIH. 567. 

sParl. Keg. LX. 494, 495; Hans. (1), XL. 
459; Same, XXXV. 204. 



Chap. VIL] petitions. 443 

than the mere communication of information. The prayer also 
must be for something to be done or omitted by the house, in the 
way of its ordinary proceeding as a legislative body ; it is not a 
proper prayer for the petitioner merely to ask the attention of the 
house to his statements.^ 



Article III. As to the Signing of a Petition. 

1092. The general rule of parliament with reference to the sign- 
ing of petitions, as expressed in a resolution of the house of com- 
mons, of November 14, 1689,'-^ is, that " all petitions presented to the 
house ought to be signed by the petitioners, with their own hands, 
by their names or marks ; " ^ to which there appear to be three ex- 
ceptions, ^ys^, where a petitioner is unable from sickness to sign his 
name or mark,^ in which case, another person may sign for him at 
his request or by his authority ^ or consent ; second, where a peti- 
tion is all in the handwriting of the petitioner, in which case, if his 
name appears in the body of the petition, it need not be signed at 
all ; ° and, third, where a petitioner, being out of the realm, has sent 
a fuU and legal authority to another to subscribe his name for him, 
in M'hich case the petition may be signed in the usual manner by 
attorney.'' 

1093. When the names attached to a petition, except as above 
mentioned, appear upon inspection, as for example, where they are 
written by the same hand,^ or are declared, not to be in the hand- 
writing of the parties, whose names they purport to be, the petition 
is not receivable ; ^ but if a petition, with names thus appended to 
it, has also one or more genuine signatures, it may be received as 
the petition of those by whom it is so signed.^" In a case of this 
kind, it is necessary that the spurious signatures should be separated 
from the genuine, either before or after the petition is presented. 
The member, who has charge of such a petition, may, before offer- 
ing to present it, detach the spurious signatures, if that can be done, 
and present it with such of the original signatures as remain an- 
nexed to the petition ; or the spurious signatures may be erased, 

1 Hans. (2), XIH. 567. t Hans. (1), XXXV. 862 ; Pari. Reg. XXXH. 

« Comm. Jour. X. 285 ; Same, XXX. 499. 2. The rules stated in the above paragi-aph 

8 Comm. Jour. XXXIV. 800, prevail also in congi-ess. 

* Hatsell, II. 189, note. 8 Comm. Jour. X. 285, 286. 

sHans. (1), XI. 1, 2. See also Lords' » jjans. (1), XI. 33, 34. 

Jour. LL 507, 519; Comm. Jour. LXXXV. i» Hatsell, IL 189, note; Pari. Reg. XL. 449, 

J41; Same, XCI. 325; May, 885. 451; Hans. (1), XL 1, 2; Same, 35, 36: Same, 

6Hans.(l), XIX. 1148. XX. 1366, 1367. 



444 



LEGISLATIVE ASSEMBLIES. 



[Part V. 



and the petition presented with such as are genuine, provided the 
genuine signatures are known or can be ascertained. But this 
course is hazardous without previous investigation and inquiry; 
inasmuch as the erasing of a genuine signature would destroy the 
petition as to such party, and the suffering of a spurious one to re- 
main might prevent its reception.^ If a petition, which appears to 
be irregular in this respect, has already been received, it may either 
be withdrawn, for the purpose of having the spurious signatures 
detached or erased, or it may be referred to a committee to inquire 
how it was signed; and if, upon the report of the committee, it ap- 
pears that any of the signatures are not genuine, to cause them to 
be erased.^ 

1094. The rule above stated not only prohibits one person from 
putting the name of another to a petition, but also from putting his 
own as the agent merely, in any form, of such petitioner : thus a 
petition purporting to come from the creditors of a member, and 
signed by an individual describing himself as then- agent, was not 
received ; ^ a petition purporting to be from the master printers of 
Edinburgh, which was signed by eighteen persons describing them- 
selves as a committee deputed by and signing on behalf of a great 
number of gentlemen, master printers of the city and vicinity of 
Edinburgh, being objected to as improperly signed, was withdrawn 
for the pm-pose of being put into a proper form ;* a petition which 
was designated by the subscribers to it as that of petitioners on be- 
half of the western branch of the national union of the working 
classes of the metropolis was objected to and withdrawn.^ Where, 
however, the parties, whose signatures are thus affixed to a peti- 
tion on behalf of other persons, sign it also on their own account, 
or come within the description of the petitioners, as where a peti- 
tion is signed by the chairman of a public meeting, on behalf of 
himself and the other persons there assembled,*^ or by a sheriff, in 
behalf of the freeholders and inhabitants of his county, at a county 
meeting,'^ such petition may be received as the petition of the indi- 
vidual by whom it is signed ; and, so in the cases above mentioned, 
if the persons, by whom those petitions were severally signed, had 
signed for themselves as well as others, the petitions might have 



1 Hans. (1), XI. 34, 35. 

2 Pari. Reg. XL. 450, 451. 
»Hans. (1), XXXIX. 134. 

* Pari. Reg. (2), XVU. 441, 442. 



5 Hans. (3), Vn. 683; Comm. Jour. 
LXXXVL 872. 

sHatsell, U. 189, note; Pari. Reg. (2), 
XVIL 389; Hans. (3), IX. 594. 

» Hans. (1), XXXV. 968, 969, 970. 



Chap. VIL] petitions. 445 

been received as those of the several petitioners by whom they were 
signed.^ 

1095. The rule under consideration does not extend to the indi- 
viduals composing any municipal or other corporation or chartered 
body which has a legal existence, and which must therefore be 
recognized in its aggregate capacity by parliament.^ The petition 
of such a body should be signed by the proper officers, and authen- 
ticated by its common seal, if it has one,'^ otherwise by its officers 
only.*^ In all cases of this kind, the petition should be drawn up 
and signed by the legal name and style of the corporation or com- 
pany. 

1096. The house of commons, by a resolution agreed to June 
2d, 1774, declared it to be " highly unwarrantable, and a breach of 
the privilege of this house, for any person to set the name of any 
other person to any petition to be presented to tliis house." ^ Inde- 
pendently, however, of any express declaration to this effect, there 
can be no doubt, that the presentation of a forged petition, (and a 
genuine petition ^vith some forged and some genuine signatures 
upon it must be considered as to the former a forgery,) is such an 
imposition and insult as must of necessity amount to a breach of 
privilege. The rule above mentioned, though broad and general in 
its terms, must doubtless be restricted to petitions which have been 
presented and received by the house ; one which has merely been 
prepared, but not presented, or which has been offered and refused, 
or which has been presented and withdrawn, can hardly be con- 
sidered as a breach of privilege. In cases of this kind, although 
the offence is a breach of privilege, the house does not proceed 
untU a complaint of the forgery is made by some person or persons 
interested, usually in the form of a petition, which is presented to 
the house and referred to a committee. In one instance, a com- 
plaint was made by means of a letter addressed to a member and 
read by him to the house, upon which a committee was appointed, 

1 This is not a matter of indifference, as bling themselves together to consult for the 

where a petition is so received, it cannot be common good, it might be made a question, 

considered in a parliamentary sense to express whether a petition emanating from such a 

the meaning or views, or wishes, of the meet- meeting, and signed in belialf thereof by the 

mg at whicli it purports to have been agreed chairman and secretary, ouglit not to be con- 

upon, but only of the individual by whom it sidered as the petition of the meeting. See, 

is signed. Consequently any allusion to it in also, Cong. Globe, XI. 439. 

debate as expressing the sense of the meeting " Hans. (3), VH. 683; Same, IX. 594. 

must, of course, be disorderly. In those of ^ Pari. Reg. XLIII. 687. 

the States in which the people are secured by * Hans. (2), XHI. 9. 

constitutional provision in the rigiit of assem- ^ Comra. Jour. XXXIV. 800. 

38 



446 LEGISLATIVE ASSEMBLIES. [PaRT V 

to whom the petition in question was referred.^ In reference to 
tiiis case, i\Ir. Speaker Manners Sutton, on a subsequent occasion, 
remarked, that, " the house," he believed, " was influenced by the 
consideration, that a letter had in some sort the effect of a petition, 
and infeiTed a responsibility; the house would exercise its dis- 
cretion, but the practice "^"as, to take care that the grievance 
complained of should be substantiated by the assurance and 
responsibility of some party aggrieved, and therefore to reqtdre 
something more than a mere statement." ^ In the case to which 
these remarks were particularly directed, the house had previously 
appointed a committee upon the statement of a member, that some 
of the signatures to a certain petition were forgeries, but without 
any complaint or petition from persons interested ; thereupon a 
petition ^vas presented from some of the persons, whose signatures 
were alleged to be forged, stating that the petition was genuine, 
that they had signed it, and offering to substantiate these facts by 
evidence ; and a motion being then made, that these parties be 
heard before the cominittee, a debate ensued, "^^hich terminated in 
the committee being discharged, on the ground of the irregularity 
of the proceeding.-^ A similar rule, as to not proceeding unless a 
complaint is made in some form by parties interested, appears to 
prevail in the house of lords.^ K the committee appointed to inves- 
tigate a charge of forgery, reports that the offence has been commit- 
ted, the offender is pimished by commitment to one of the public 
prisons.'^ 

1097. Where a petition consists of several skins of parchment, 
or several sheets of paper, attached together, it is an established 
rule in both houses, that the skin or sheet, upon which the petition 
itself is "vsiitten, or upon which it terminates, should have at least 
one of the signatures upon it.*^ This rule is established in order to 
guard against the imposition of names being procm-ed for one pur- 
pose, and attached to a petition for another ; one name alone being 
deemed sufficient to entitle the petition to the respectful considera- 
tion of the house, and, if genuine, to furnish some security for the 
authenticity of all the other signatiues." The reason of this rule 
is fully and forcibly expressed in the following remarks made in 

1 Hans. (2), XXI. 22, 23. 8 Comm. Jour. LXXII. 128, 144; Cong. 

« Hans. (3), XXE. 189. Globe, XXIH. 575; Same, LXXVH. 127; Hat- 

» Comm. Jour. LXXXIX. 92, 108, 109, 116, sell, H. 189, note; Hans. (1), XXX. 257, 258 

121. Same, (1), XXXV. 94, 95; Same, 95, '96. 

* Lords' Jour. XL. 554, (a). ' Hans. (1), XXXV. 98. 

» Comm. Jour. LXXX. 445 ; Same, LXXX. 
B61, 582 ; Same, LXXXIV. 187. 



Chap. VIL] petitions. 447 

debate in the house of commons, by the attorney-general, 1817 : — 
" If petitions could be received, written with the signatures on one 
piece of paper, and the application upon another, what security had 
the house, that they were genuine ? Might there not be a bureau 
in town for the manufacture of petitions, and another in the country 
for procuring signatures? And might not some demagogue join 
the operation of the two, without any authority from the persons 
whose names were employed ? The house should be open to the 
grievances and representations of the people, but it should know 
whether the statement of those grievances and the prayer for relief 
really came from themselves, or were brought forward by persons 
who abused their confidence in order to influence the public dis- 
content." ^ 

1098. The signatures attached to a petition are generally pre- 
ceded by these words, which follow the prayer : And your petitioners^ 
as in duty hound will ever pray ; but, this form is not indispensable. ^ 
A petition has no date.^ 



Article IV. As to Matters extraneous to a Petition. 

1099. What has been stated under the preceding heads is all 
that in strictness relates to a petition ; but, as it has sometimes been 
attempted to annex other papers and documents to a petition, 
usually in the form of evidence in support of its allegations, and to 
present the whole together ; it is necessary to state the rule with 
reference to such extraneous matters. According to the parhament- 
ary couse of proceeding, the way is to present a petition containing 
a statement of the facts upon which the petitioner's case depends, 
and to pray that the house would allow the petitioner to be heard 
with his witnesses and counsel to substantiate those facts; the 
house then has the option, upon such statement, to go into the 
case, or to dismiss it at once.^ It is deemed to be irregular, there- 
fore, to mix up the facts with the evidence, so as to compel the 
house to consider them both together in the first instance ; or to 
call upon the house to read and consider the evidence, before it has 
determined to enter upon the inquiry. It is consequently an estab- 
lished rule, in both houses, that no petition can be received which 
has affidavits, letters, or other papers or documents attached to it; 
not even an affidavit of the genuineness of the signatures, or a 

1 Hans. (1), XXXV. 96. » Hans. (3), XXII. 185. 

2 May, 384. * Hans. (1), XXVII. 395. 



448 LEGISLATIVE ASSEMBLIES. [PaRT V 

statement giving additional reasons for the signatures of some of 
the petitioners.^ Inasmuch, however, as the annexation of such 
papers is only objectionable in point of form, they may be sepa- 
rated from the petition, and the petition presented without them , 
but, in such a case, it will be for the member having charge of the 
petition to decide, whether it will be sufficient of itself ^dthout the 
papers annexed ; if not, the preferable course is to ^\"ithdxaw the 
petition altogether in order that it may be put into a proper form 
or a n.e\\T one prepared.^ 

1100. It is essential that the house should have some evidence 
of the genuineness of a petition or of the signatures to it, which is 
also a pledge to make good the allegations contained in it, before 
proceeding to entertain and consider it. This appears to have been 
anciently effected by the CAddence of the petitioners themselves, or 
of other persons attending for the purpose at the bar, according to 
the practice as stated by ScobeU : " That if the petitions be con- 
cerning private persons, they are to be subscribed, and the persons 
presenting them called in to the bar to avow the substance of the 
petition, especially if it be a complaint against any." ^ The state- 
ment of a member, that he knew the handviTriting, subsequently 
came to be considered as equivalent to this evidence in order that 
petitioners might not be subjected to the necessity of coming from 
remote parts to prove their petitions ; but at the same time, it was 
not allowed to prove the genuineness of a petition by the affidavits 
of witnesses taken in the country, and attached to the petition.^ 
The practice, of caUing in petitioners to own then- petitions, pre- 
vailed for some time after the revolution;^ but it has now for a 
long time been discontinued ; *^ as has also the practice, if it ever 
prevailed, of a member's vouchmg for the genuineness of the signa- 
tures." The rule, on this subject, which prevails in modern timeg, 
is thus stated by ]Mr. Speaker Abbott : " The house required of 

1 Comm. Jour. LXXXI. 82 ; Same, LXXXII. tioners being admitted on the floor of the 
41; Grev, VI. 38; Hans. (1), XXVII. 393; house, the adckess -was read. On the next 
Same, XXXVIII. 662; Same, (2), XIV. 567; day it was resolved, " that no motion shall be 
Same, (3), XXX\ni. 835. deemed in order, to admit any person or per- 

2 Hans. (1), XXVn. 395; Same, XXXVHI. sons whatever within the doors of the senate 
662. chamber to present any petition, memorial, or 

3 Scobell, 87. addj-ess, or to hear any such read." J. of S. 
* Grey, VI. 36, 37, 3S. II. 480, 481. 

5 Comm. Jour. X. 13, 35, 65, 70, 75, 81, 192, « Cav. Deb. L 74. 
285 ; Same, XIIL 518, 750, 764. In the sen- " In the house of lords, in 1775, Lord Cam- 
ate of the United States at a very early con- den vouched for the genuineness of a petition 
gress, an address and memorial of citizens of presented by him, on a doubt being expressed 
Philadelphia was presented, and on motion a as to how the petition came into his hands 
large and respectable committee of the peti- Pari. Eeg. II. 133, 134. 



Chap. VIL] petitions. 449 

members presenting petitions, that they should be able to say, that 
they believed the signatures to be authentic, but it had not been 
the practice to require absolute certainty on that point ; a practice 
which would be attended with great inconvenience. God forbid, 
that the subjects of this country should be unable to have petitions 
presented, unless they came from the most distant parts of the king- 
dom, to give them into the hands of members, and prove their hand- 
writinof." ^ 



Section III. Of Petitions as to theie Substance. 

1101. The first essential requisite to a petition, so far as its sub- 
stance is concerned, relates to the language in which it is expressed ; 
which should be decorous and proper in itself, and also respectful 
towards the house to M^hich it is addressed, as well as its individual 
members, and to other coordinate bodies and authorities.^ The 
observance of this rule is not inconsistent with the fullest and freest 
exercise of the right of petition; for there can be no grievance, 
public or private, within the power of the legislature to relieve, 
which may not be adequately complained of in courteous and 
decent terms.^ And a breach of the rule is not only an insult to 
the legislative body, but to the whole constituency, including the 
petitioners, of which that body is the representative ; tending rather 
to excite ill-feeling than to promote calm deliberation ; and ad- 
mitting of no answer, consistently w^ith parliamentary forms, beyond 
the simple rejection of the offensive document.* 

1102. In judging of the language of a petition, the following 
rules wiU be found useful ; first, that if the wording of a petition is 
susceptible of more than one construction, that meaning is to be 
adopted, which is most favorable to the petitioners ; ^ second, that 
the character of the petition does not depend upon the use of any 
particular expression, but is rather to be gathered from the whole 
tenor of the language ; ^ third, that where offensive expressions are 
introduced into a petition, which are clearly irrelevant to the prayer 



1 Hans. (1), XVn. 314, 315, 316, 320. The 2 See also J. of C. IV. 670; J. of II. 15th 

rule, on this subject, laid down in the senate Cong. 1st Bess. 320 ; Cong. Globe, Vll. 246. 

of the United States many years ago, was ^ Hans. (3), XL. 474, 475. 

'•that no petition was to be acted upon, unless * Hans. (1), XXXV. 204. 

signed or written in the presence of the mem- ^ Hans. (2), XV. 970. 

ber, or unless the handwriting was averred by • Hans. {2), VI. 1233. 
the member presenting it." Reg. of Deb. III. 
295. 

38* 



450 LEGISLATIVE ASSEMBLIES. [PaRT V 

of it, this circumstance affords strong ground for concluding that 
the disrespect is intentional ; ^ and fourth, that ^^len the language 
of a petition is such, that, if spoken by a member in debate, it 
would be disorderly and unparliamentary, it is improper to be em- 
ployed in a petition.^ If the object of a petition, v.iien judged of 
by these rules, appears to be simply to complain of a grievance, it 
ought to be received ; if, ^vithout any such purpose, or using it as a 
mere pretext, the only intention of a petitioner appears to be to 
vilify and traduce the house, or to treat it with disrespect, his peti- 
tion ought to be rejected.^ 

1103. The following are instances of disrespectful and offensive 
language addressed to the house itself, on account of which peti- 
tions have been refused or rejected : " that an arbitrary imprison- 
ment (referring to the commitment of Sk Francis Burdett and ]\Ir. 
Gale Jones by the house) of the subjects of this realm, during 
pleasure, for an alleged hbel, not proved to be such, is an infringe- 
ment both of the Uberty of the press and of the person ; " * that one 
vote of the house was " past all endurance," and another " a flagrant 
illegahty ; " ^ that, in committing Sh Francis Burdett the house had 
" usurped a power unknown to the law, and not warranted by the 
constitution ; " ^ that the commitment of Sir Francis Burdett was 
" a violation of the personal security of the people of the land, and 
without law ; " " that it is the universal conviction of the people, 
that the house of commons doth not, in any constitutional or na- 
tional sense, represent the nation ; ^ that boys "were sent into parlia- 
ment, who came solely to vote according to the dictation of minis- 
ters, and never heard an iota of the merits of the question ; ^ that 
two hundred members of the house, naming them, were returned 
by borough influence, and calling on the house to expel them ; '^^ 
that the Jews were not the murderers of the Saviour, (which the 
petitioner offered to prove at the bar,) and did not deserve the per- 
secution and exclusion to which they were subjected ; ^^ complaining 
of the great and unnecessary delay in passing the reform biU, and 
declaring that it was impeded by the upholders of corruption in the 

1 Pari. Eeg. XXXV. 350, 357; Hans. (3), * Hans. (1), XVH. 443, 454. 
IV. 578, 579, 580. 5 Hans. (1), XVH. 1031. 

2 Hans. (3), VL 536, 537, 538; Same, (3), « Hans. (1), XVH. 815, 818. 
XX. 634; Same, (3), XXXIV. 670. The con- i Hans. (1), XVH. 885, 944. 
verse of this proposition, namely, that what- ^ Hans. (1), XXXV. 82, 91, 93. 
ever may be spoken in debate, may be stated * Hans. (2), VI. 1370. 

in a petition, does not hold equally true. ^° Hans. (2), II. 479, 485. 
?arl. Eeg. XXXV. 349. " Hans. (2), XXV. 413. 

3 Haus. (2), VI. 1233. 



Chap. VIL] petitions. 451 

honorable house, who, upon the most frivolous pretence, wasted the 
public time ; ^ to impute motives to the house, which, from one 
member to another, would be disorderly.^ 

1104. There are also instances of offensive expressions, not par- 
ticularly affecting, though addressed to, the house itself, on account 
of which petitions have been refused to be received, as disrespectful 
to the house; as, where certain petitioners, with an evident inten- 
tion to make their petition a vehicle for scandal and abuse of the 
other house of parliament, prayed " that those charitable bequests, 
which had been hitherto roguishly absorbed by the clerical and lay 
aristocracy, should be appropriated to their proper uses ; " ^ where 
the purpose of the petition is to throw ridicule on an act of parlia- 
ment, the petitioners complaining " of the profligate expenditure of 
the public money in granting the queen £100,000 per annum, in 
the event of her surviving his majesty, and praying for a legislative 
enactment, by which the widow of every operative in the kingdom 
should receive £25 per annum, in case her husband should not 
die worth XlOO, and adding that they could not apprehend any 
objection to this, as those individuals had much better claims upon 
the nation for this small sum, as belonging to the productive classes, 
being in fact the only producers of wealth, than her majesty to 
the grant of .£100,000 ;"* where a petition contained these ex- 
pressions, " your petitioners do not deny that there is a rabble of 
the trades, as there is a rabble of the lords, and a rabble of aris- 
tocracy, but they do not say there is a rabble in your honorable 
house." ^ 

1105. There is another class of cases, in which the language of 
a petition is improper, not because of its being offensive in itself or 
indecorous in its terms, but because the statements, of which it is 
the vehicle, are not proper to be made by petitioners. Thus, it is 
not allowable for petitioners to refer to any thing which may have 
been said by members in debate in the house,*^' either for the pur- 
pose of complaint,'^ contradiction,^ or comment;^ or to refer to the 
proceedings of a committee which has not yet reported ; ^" or to 
complain of the mode in which the proceedings of the house are 



1 Hans. (3), VI. 536, 537, 538. Same, (3), LXIII. 192; Same, XXIV. 1287, 

« Hans. (3), XX. 634. Same, LIV. 462. 

8 Hans. (3), XXXIV. 670. t Hans. (1), XL. 150, 151. 

* Hans. (3), VI. 292, 293, 294. « Hans. (3), III. 1734, 1735, 1736. 

6 Hans. (3), XL. 474, 475. » Hans. (2). 1136; Same, XV. 970; Same, 
« Hans. (3), III. 1734, 1735, 1736; Same, (1), (3), LXIII. 192. 

XL. 150, 151; Same, (2), 1136; Same, 970; i» Hans. (2), X. 8, 9, 10. 



452 LEGISLATIVE ASSEMBLIES. [PaRT V 

conducted ; ^ or to take notice of matters which they can only know 
by means of a breach of the privileges of the other house.- 

1106. The second essential requisite to a petition is, that it 
should set forth a case in which the house has jurisdiction to inter- 
fere.3 Thus, in reference to a petition presented in the house of 
lords, Lord Chancellor Eldon said : " The petition in fact demand- 
ed that they should interfere in a case which was open to judicial 
proceedings ; that they should assume an original jurisdiction, con- 
trary to the principles of the constitution ; " and the petition was 
thereupon rejected.'^ So, where a petition was presented in the 
house of commons, complaining of a speech made by a member, in 
which the petitioner was charged with roasting the bible, the 
petitioner saying, at the same time, that being aware he could not 
complain of any thing that took place in the house, he merely 
meant to complam of what had been published as a part of its 
proceedings in the public prints, the speaker said, that " if the 
petitioner had to complain of the publication of any Kbel out of the 
house, that was not the place to come to for redress, but that there 
were other tribunals open to him for the pm-pose." ^ A petition 
being offered to be presented from inhabitants of Crete, complain- 
ing of their sufferings under the Turkish government in that island, 
and objection being made to the reception of the petition, the 
speaker, Mr. Manners Sutton, said, " that the object of the petitioners 
was to obtain the interference of the crown of Great Britain to pro- 
tect them from the miseries under which they were at the present 
moment laboring ; the petition did not appear to contain any mat- 
ter which brought it within the jurisdiction of the house of com- 
mons." '^ So, where a petition was offered to be presented from 
Polish refugees, resident in London, praying the house to address 
the crown, in order to obtain its interference in the affau's of Poland, 
objection being made to its reception. Mi'. Speaker Manners Sut- 
ton said : " The house might receive the petitions of foreigners 
residing in this countiy, when the subject of then complaint origi- 
nated in the acts of British authorities ; but he was of opinion that 
such a petition as that brought forward, could not be received." 
The petition vvas then withdrawn." 

1107. A third requisite is, that the petition should conclude with 
a prayer for such interference on the part of the house, or, in other 

1 Hans. (3), V. 1334; Same, XXIV. 1288. ^ Hans. (3), IX. 1275. 

a Hans. (3), VHI. 894. « Hans. (3), XL 654, 655. 

s Pari. Reg. XXHI. 113. ^ Hans. (3), XIII. 1115. 
* Hans. (,1), XXXV. 172- 



Chap. VIL] petitions. 453 

words, for such relief, as is within the power of the house. Thus, 
in reference to a petition presented in the house of lords, Lord 
Chancellor Eldon said, " that, in its present shape, the petitioner 
prayed for no legislative relief, but for proceedings in a court of law, 
which that house could not originate ; " ^ where a petition was pre- 
sented to the house of commons, in which the petitioner complain- 
ed, that at a trial for libel, in which the petitioner Avas the prose- 
cutor, the judge who presided refused to allow him to address the 
jury, but the petition did not pray for any specific relief, the house, 
on that ground, refused to order the petition to lie on the table ; ^ 
where a petition was presented in the house of lords, relating to 
the then late melancholy occurrences in Kent, and praying for the 
appointment of a committee to investigate, and that till the report 
was made, all judicial proceedings might be suspended, Lord 
Brougham objected to the petition, " because it contained a prayer 
wdth which the house had no power to comply ; if it complied with 
that prayer, it would be guilty of a breach of the law ; it had no 
right to stay any judicial proceedings ; " and the petition was there- 
upon rejected.^ 

1108. But where a petition, besides a prayer for relief which 
is not wdthin the power of the house, prays also for that which is, 
the petition wall be received ; as, for example, where a petitioner 
set forth that he was imprisoned in the gaol of Edinburgh, at the 
instance of the clergy of that city, for arrears of an annuity tax, and 
prayed that he might be set at liberty, and also that the tax might 
be abolished, the petition was received, although the first part of 
the prayer was not within the constitutional power of the house.* 
If the prayer of the petition is within the power of the house to 
grant, the absurdity of it is no objection to the reception of the 
petition ; as, for example, a petition being presented in the house 
of commons, praying the house to adopt some legislative enact- 
ment, to cause the canon law of the church of Rome to be fairly 
observed in L'eland, and the receiving of the petition being objected 
to, for the reason that the house could neither investigate the 
complaint, nor afford any practical relief, the petition was ne vert he- 
less ordered to lie on the table by the house, on the ground above 

1 Hans. (1), XXXIII. 215. admissible in the congress of the United States. 

2 Hans. (1), XL. 910. J. of vS. 31st Cong. 1st Sess. 136; Cong. Globe, 
8 Hans. (3), XL. 803. A petition purporting XI. 168; Same, XIH. 55. 

to pray for the dissolution of the Uuion is * Uaus. (3), XXXIII. 326. 



454 LEGISLATIVE ASSEMBLIES. [PaRT V. 

suggested, namely, that the relief prayed for was within the power 
of the house, though not likely to be afforded.^ 



Section IV. Or the Presentatioist and Reading of Petitions. 

1109. In order to bring a petition before the house for its con- 
sideration, it must be regularly presented and read ; and until this 
is done, no order can properly be made respecting any petition, not 
even for its lying on the table.^ It is necessary, then, before enter- 
ing upon the proceedings which may take place with reference to 
petitions, to explain in what manner they are presented and received, 
and then contents made known to the house. 

1110. The right of petition, on the part of constituents, impHes a 
corresponding duty on the part of the representative body, to receive 
and consider their petitions. In order that petitions should be con- 
sidered, they must in the first place be brought to the knowledge of 
the representative body. This may be done in two modes, either 
by the petitioners themselves or their agents presenting their peti- 
tions directly to the house, or by the members presenting them in 
the house. 

1111. The first of these two modes, or a course equivalent to it, 
seems to have prevailed to some extent, but not to the exclusion 
of the other, from the time of James I. until some time subse- 
quent to the restoration. During this period, and especially that 
part of it in which grand committees formed so important a por- 
tion of the parhamentary machinery, it appears to have been the 
practice, at least, in part, for petitioners to deliver their petitions 
dkectly into the hands of the appropriate committees. Sometimes, 
as in December, 1640, a general committee on petitions was ap- 
pointed, whose business it was " to peruse aU petitions that are 
come in, or to come in ; " in order " to see what petitions are fit to 
be received, and to what committee they are fit to be referred, and 
to report to the house." ^ This practice — of petitions being dehv- 
ered by the petitioners themselves, — feU into disuse probably, 
when the sitting of the grand committees was discontinued ; and, 
at the present day, with two exceptions which will presently be 
stated, all petitions are required to be presented in the house by 
members. 

1112. The principal mode, therefore, in which constituents are 

1 Hans. (3), XXXIV. 1042, 1043, 1044. = Comin. Jour. U. 50; Rushworth, IV. 97. 

a Hans. H. 188. 



Chap. VI L] petitions. 455 

at liberty to approach the aggregate representative body, being 
through and by means of the individual members of that body ; it 
is accordingly held to be one of the most undoubted duties of a 
member of parliament, when requested by any of his constituents, 
whether immediate or not, to offer to present their petitions, and to 
bring the contents thereof to the knowledge of the house of w^hich 
he is a member. But, when a petition is thus offered or presented, 
and brought to the knowledge of the house, the duty of the mem- 
ber to whom it has been intrusted is discharged ; he is not thereby 
committed to the support of any of the opinions advanced by the 
petitioners; the petition, if received, becomes the property of the 
house ; and any other member has as much right, and is as much 
under obligation to make motions for the purpose of proceeding 
further upon it, as the member by whom it was introduced.^ 

1113. Two courses only seem open to be pursued with reference 
to the presenting and receiving of petitions, namely, either to allow 
all petitions to be presented in the first instance, and then, upon 
reading them, to determine whether they are proper or not to be 
received ; or to determine beforehand, and without reading them, 
whether they are fit to be received. It might be said in favor of 
the first course, that, in no other way so well as by hearing a peti- 
tion read, could the house determine upon its character. But, on 
the other hand, it is obvious, that if it were the duty of the house to 
hear all petitions read in the first instance that might be offered, its 
time, and the time of its constituents, might be completely wasted 
in listening to petitions, upon which it would be impossible to pro- 
ceed, or which might be made the vehicle of insult and outrage 
towards the house or its members.^ In view of the inconveniences 
by which this com'se would unavoidably be attended, it is the estab- 
lished practice in parliament to determine beforehand, and without 
reading a petition in the house, whether it is fit to be received. 

1114. In order to enable the house to proceed in this manner, it 
is an established rule, that it is the duty of every member, when 
called upon by his constituents to present a petition, to read it 
through, or, in some other mode,-^ to become master of its contents, 
and to satisfy himself by inquiry or olherwise, in regard to aU 
extraneous matters relating to it, so as to become possessed of all 
the facts upon which the question of its reception depends. If the 

1 Cav. Deb. I. 74; Purl. Reg. LXI. 379. 152; Snme, 151; Same, 154, 155; Same, 157, 

See also Reg. of Deb. XII. Part II. 1961. 158; Same, 205; Same, (3), III, 1734, 1736, 

a Hans. (1), XXXV. 204. 1736; Same, LX. 645. 
» Hans. (1), VI. 185; Same, XXXV. 149, 



456 LEGISLATIVE ASSEMBLIES. [PaRT V. 

result of this examination and inquiry is such as to satisfy the 
mind of the member, that the petition ought not to be received, 
according to the parliamentary rules above mentioned,^ that is, 
if he would feel it his duty to give his vote against receiving it, if 
offered by another member, or if he would consider it disorderly in 
himself or any other meinber to use the language it contains iu 
debate, it is his duty to decline offering it to the house. The 
petitioners may then put their petition into the proper form, or erase 
the objectionable passages, so as to entitle it to be received, and 
cause it to be presented by the same or some other member ; or, 
without altering their petition, they may carry it to some other 
member, and have the same process repeated ; if, on the other hand, 
the member is satisfied that the petition ought to be received, it is 
his duty, as already observed, to offer to present it to the house. 
K his mind is left in doubt, it is not his duty to decline presenting 
the petition, but to offer it to the house, with a special statement of 
the facts, upon which his doubts arise, and to leave it to the house 
to determine.^ 

1115. K a member on examination of a petition, which has been 
intrusted to him to be presented, finds passages in it so objection- 
able, that he can neither vouch for their decency and propriety 
himself, nor refer them specially to the house for its consideration, 
the only course which he can properly take is to decline presenting 
the petition. He has no right to erase, cut out, or alter, in any way, 
the objectionable parts ; and by so doing, without the express con- 
sent or knowledge of the petitioners, the document would cease to 
be then- petition.^ The reasons for this rule were thus forcibly laid 
down by Mr. Speaker Manners Sutton : " K members were allowed 
to make erasures at theh own discretion, there would be no possi- 
bihty of drawing a line of distinction, as to what might, or might 
not, be altered, and petitions might be converted into supporting a 
wholly different object from that intended by their author. There 
was another objection to such a course, namely, that it would lead 
to the principle of causing members to adopt petitions as their own, 
instead of being merely channels of conveying petitions to the 
house, without committing themselves to their contents." 

1116. A member having a petition to present, who has prepared 
himself beforehand, as above mentioned, and taken a proper time for 

1 Ante, 964. 3 Hans. (3), V. 1267, 1268; Same, VI. 7, 

2 Han?. (1), n. 1043; Same, XXXV. 151: 8,9. 
Same, 205, 206; Same, 206, 207; Same, (3), 

HI. 1734, 1735, 1736; Same, LX. 645. 



Chap. VIL] petitions. 457 

the purpose, should inform the house that he has such a petition 
intrusted to him to present ; he should at the same time make a 
statement of the facts necessary to be known by the house, in order 
to enable it to determine whether the petition is a fit one to be 
received ; ^ and he should then conclude with a motion that the 
petition be brought up to the table. This motion, however, may 
be made with equal propriety by any other member. It would 
seem, that the facts thus necessary to be stated by a member offer- 
ing a petition should, in strictness, be all which relate to the question 
of reception, and upon which the decision of that question may 
depend in the particular case, namely, the names or general desig- 
nation and description of the petitioners; the substance or a brief 
summary of the facts alleged; the prayer of the petition; that the 
member offering it believes the signatures to be genuine ; if the 
petition is in a foreign language, that the translation by which it is 
accompanied is correct; if there are any erasures or interlinea- 
tions apparent upon the face of it, that they were made by the 
petitioners themselves, or with their consent and knowledge ; that 
in his judgment the petition is expressed in fit and decent language, 
and contains nothing intentionally disrespectful to the house ; 
and that it is drawn up in the proper form. 

1117. In practice, however, much of this strictness is dispensed 
with, in view of the confidence which the house reposes in its mem- 
bers, and for the purpose of facilitating the business. According to 
the ordinary course of proceeding, all that is required of a member 
offering to present a petition is, that he should state the substance 
and prayer of it, and that in his judgment it is couched in fit and 
decent language and contains nothing intentionally disrespectful to 
the house, and that he should be prepared, at the same time, to 
answer questions with reference to the other points above suggested, 
if the speaker or any member should think proper to make them the 
subject of inquiry. If the member entertains doubt with reference 
to some of those points, he should not wait to be interrogated, but 
should make his statement fuU at once. 

1118. The only security, which the house can have against being 
insulted by the language of petitions, being the confidence which 
it reposes in its members, first, that they will faithfully read or 
otherwise obtain a knowledge of the contents of all petitions which 
they undertake to present; and, secondly, that they wiU truly 
inform the house of the opinions which they form of the language 

1 Hans. (1), XXVIII. 539; Same, XXX. 1007; Same, XVII. 220; Same, VIH. 684; Same, 
XXXV. 149. 

39 



458 LEGISLATIVE ASSEMBLIES. [PaRT V. 

of tho 36 petitions ; it is an established rule, that no member is at 
liberty, except under extraordinary circumstances, to offer a petition 
to the house which he has not read,^ and to the language of which 
he is not prepared to give his sanction, or in reference to which, he 
is not willing to state the views which he entertains.^ If a mem- 
ber offers to present a petition, and, on being questioned as to the 
language in which it is composed, declares that he has not read the 
petition, or wiU neither say that in his judgment the language is 
decorous and proper, nor express the views which he entertains of 
it, such petition will be refused, or the member will be directed to 
withdraw it.^ Where a member, on presenting a petition, insisted 
that he was not bound to form any opinion as to the language of it, 
and would not say, whether, in his judgment, it was intentionally 
disrespectful or not, whatever his opinion might be, the motion for 
bringing up the petition was negatived without a division.* 

1119. If a member abuses the confidence thus reposed in him, 
either by negligently and carelessly allowing the house to receive a 
petition which is disrespectful or improper in its terms ; or by wil- 
fully stating that it contains nothing, which, in his judgment, is 
intentionally disrespectful to the house, in order to induce the house 
to receive it ; such member thereby implicates himself in the lan- 
guage of the petition,^ and becomes liable to the censure and 
punishment of the house. 

1120. In making a statement of the contents and prayer of a 
petition, by way of introduction to the motion that it be brought 
up, a member cannot be called upon to read the petition, or any 
part of it;^ nor can he, if he desires to do so, be permitted to read 
the petition itself ;' though he may read particular parts, or notes 
or extracts of particular parts, if it be necessary to bring them to 
the knowledge of the house, as, for example, where the member 
wishes to present them specially to the house for its consideration.^ 
If the petition is to be read in full, or as a petition, it must first be 
received by the house, and, upon the reading being ordered, be read 
by the clerk at the table. ^ 

1121. When a member having a petition to present has thus 

1 Hans. (1), XXXV. 149, 152; Same, 151; 8 Parl. Reg. XXXV. 367, 368. 

Hatsell, II. 189, note. i Hans. (1), XXXV. 79; Same, (3), H. 342, 

2HatseU, II. 189, note; Hans. (1), XXVm. 343; J. of. H. 24th Cong. 2d Sess. 182. 

6J9. 8 Hans. (1), XXXH. 89; Same, (3), LXXIX; 

3 Hans. (1), XXXV. 96. Same, 11. 342, 343. 

* Hatsell, II. 189, note. » Hans. (1), XXX. 1007. 

« Hatsell, III. 240, note. 



Chap. VIL] petitions. 459 

made a statement of the facts, which, in his judgment, entitle it, or 
which he desires to bring, to the attention of the house, the proper 
motion (and the only one) to be made is, that the petition be 
brought up, or, in other words, received by the house. This motion 
is generally made by the member offering the petition, but may be 
properly made by any other member ; and is to be seconded, pro- 
posed to the house, and considered in the same manner, and accord- 
ing to the same rules, with other motions. 

1122. If, upon the introductory statement, and before the motion 
to bring up is made, it appears that the petition is clearly objection- 
able and not fit to be received, on account of some informality, or 
of some substantial defect, which is then pointed out by the speaker 
or other members, the petition may be withdrawn by the member, 
at his OM^n pleasure, in order that the informality may be corrected, 
or a new petition prepared. The suggestion of the speaker or the 
opinion of experienced members, offered at this point in the pro- 
ceedings, is usually followed ; but the member may nevertheless 
persist in offering the petition, and may accordingly move that it be 
brought up. If such defect or informality is not discovered or 
alluded to, until after the motion to bring up has been made, 
seconded, and proposed, the petition and motion can then only be 
withdrawn in the usual manner. 

1123. Inasmuch as the facts, upon which the question of receiv- 
ing a petition is to be decided, are only to be derived from the 
statements of the member by whom it is offered to be presented ; 
it is the established practice for members to put questions to him 
with reference to those facts, at all stages of the proceedings, and as 
well after as before the motion to bring up ; and the member may 
be interrupted in his statement or speech for that purpose ; but, 
when he has answered the inquiry put to him, he is then at liberty 
to proceed as before, unless, from his answer, it appears, that there 
is no longer any ground or occasion for proceeding. 

1124. The member offering a petition, after making his intro- 
ductory statement as above, may then proceed to address the house 
1 n all the topics embraced in it ; either after making the motion to 
bring up, in which case, it must be seconded and proposed before 
he can speak, or upon the supposition that he will conclude his 
speech with that motion. The motion to bring up may be debated, 
and proceeded with, in the same manner as with other motions, 
according to the ordinary rules of debate. If this motion is decided 
in the negative, that is, if the house refuses to allow a petition 
to be brought up, it is as much rejected, as it would be upon a 



460 LEGISLATIVE ASSEMBLIES. [PaRT V. 

motion to that effect. If the motion is agreed to, the petition is 
then brought up, and delivered in at the clerk's table, by the mem- 
ber offering it. 

1125. The proceedings above described, in the presentation and 
reception of petitions, are those which take place in the house of 
commons, and involve the parliamentary principles which relate to 
this subject. In that assembly, the motion for the reception of a 
petition is, in form, that it be brought up, that is, from the bar, from 
which aU such papers when presented to the house are brought. 
The practice in the tvv^o houses of congress, and in other legislative 
assemblies in this country, is in exact conformity with the principles 
above established. When a member has a petition to present, he 
prepares himself for the purpose, accordhig to the principles stated, 
in such manner and to such an extent, as he thinks proper, or as 
the rules of the assembly to "which he belongs require ; and having 
thus prepared himself, and obtained the floor at a proper time, he 
makes such statement as he thinks proper, and thereupon offers to 
present the petition to the assembly. This offer is considered as 
an application to the assembly to receive the petition by general 
consent, and if no objection is thereupon made, the petition is ac- 
cordingly received. K objection is made, for which no reason need 
be given, this raises the question of reception, as it is called.^ 

1126. The objection may be accompanied by the objector, or by 
some other member with a motion that the petition be not received ; 
or the member offering to present the petition, or some other, may 
thereupon move, that it be received ; or if no motion is in fact 
made, the offer to present, objected to, is considered as equivalent 
to a motion, on the part of the member offering to present the peti- 
tion, that it be received, even although he declares that he does not 
make that motion, or expressly declines to make it.^ The question 
before the assembly, therefore, and to be decided in the ordinary 
manner, is on the reception of the petition stated either in the nega- 
tive or affirmative form, but generally in the latter. 

1127. The question of reception may be preceded by an objection 
to the offer to present, on the ground of order, as, for example, that 
the petition is not in a proper form, or that it belongs to a class 
which is excluded altogether, by a special rule of the assembly, from 
being received,"^ and wiU only arise, in the event of the question of 

1 Cong. Globe, III. 176, 177, 298; Same, IV. ^ Cong. Globe, VHT. 119. 
139; Same, 94; Same, VIIL 119; Same, XIV. ^ j. of H. 26th Cong. 2d Sess. 95, 127; 
18; Jeflferson's Manual, Sec. XIX. Cong. Globe, IV. 139 



Chap. VIL] petitions. 461 

order being overruled by the presiding officer of the assembly. If 
there is no .question of order, or the question of order is overruled, 
the question of reception is then to be put, and is decided upon or 
otherwise disposed of by the assembly, like any other question. 
But until it is decided in the affirmative, the petition is not received 
by the assembly, nor in its possession. In the mean time, as, for 
example, if the question of reception is ordered to lie on the table,^ 
the petition remains in the possession of the member offering to 
present it. Where a part only of a petition is objectionable as 
against order, but that part is so connected with the residue Ihat if 
the latter is received and referred, it will be necessary to send the 
whole petition to the committee, in that case, the petition cannot 
be received.^ 

1128. The next regular step in the course of proceeding is the 
motion that the petition be read, which may be made by the same 
or any other member. This motion is essential, in order to bring 
the contents of a petition to the knowledge of the house ; for, as has 
been already observed, it is irregular for the member offering a peti- 
tion to read it in full, either in his introductory statement, or as a 
part of his speech. It is competent for members to address the 
house on this motion ; which may be debated, and proceeded with, 
in the same manner as any other motion. If decided in the nega- 
tive, that is, if the house refuses to allow the petition to be read, it 
is effectually rejected ; if decided in the affirmative, the petition is 
read by the clerk at the table, and the contents of it are then fairly 
in the possession of the house. If, upon the reading, defects of 
form or substance should appear, which had been overlooked, or 
not alluded to, the member may stiU be permitted to withdraw the 
petition, for the purposes above mentioned. 

1129. When a petition has thus been received (but not before) 
and read, and its contents brought to the knowledge of the house, 
it is then to be proceeded with, and considered by the house accord- 
ing to the various forms of parliamentary practice relative to peti- 
tions. These proceedings will form the subject of a succeeding 
section. 

1130. It seems to have been usual, at an early period, for peti- 
tions to be presented by some of the members for the county to 
which the petitioners belonged ; but this practice, if it ever prevailed, 



1 Reg. of Deb. XII. Part I. 8-33, 835, 836; Same, XIII. 60, 229; Same, XIV. 18; Same, 
Cong. Globe, IV. 79, 80; Same, VII. 47, 94; XVIII. 855. 

2 J. of H. 28th Cong. 1st Sess. 119. 

39* 



462 LEttiSLATIVE ASSEMBLIES. [PaRT V. 

and it probably never did prevail to the extent of becoming a rule, 
has long since ceased; petitioners now intrusting their petitions, 
if public, to those who agree with them in sentiment, and are 
willing to maintain then- views, if necessary, and, if private, to those 
members who are willing and able to undertake the conducting of 
their business through the house. To the general rule, however, 
that every member is competent to present whatever petition may 
be intrusted to him, there appear to be two exceptions, which will 
be mentioned in the succeeding paragraphs. 

1131. The first is, that no member is competent to present his 
own petition ; ^ for the same reason that he is not allowed, as a 
meinber, to participate in any proceeding, in which he is personally 
interested ; but must intrust his petition, like other petitioners, to 
some member to present. A member, thus interested, is entitled, 
of course, to be heard with reference to the subject of his petition, 
at the proper time, and in the same manner that members are 
heard with reference to subjects in which they are personally inter- 
ested. 

1132. The second exception is the speaker, who, although a 
member, is precluded by the office which he fills, from participating 
in the ordinary business of the house. It is consequently u-regular 
to send a petition to Mr. Speaker, in order that he may take charge 
of and present it as a member. When a petition Mvas thus sent to 
Mr. Addington, when speaker, to be delivered to the house, he 
declined doing so, and gave his reasons therefor to the house in the 
following terms : " The objection which he had to complying with 
this request, was solely on the point of regularity of the proceedings 
of the house. Had he (as speaker) received the petition in this 
manner, the question ' that this petition be now received or brought 
up,' could not be put. The check on improper petitions would 
thus be done away with, if he had made himself the channel of 
communication of petitions, or any other paper presented to him 
in this manner. It was true, that a vote of the house early in the 
session (one of the sessional orders) gave the speaker power to 
present papers under particular cncumstances, to the house, but he 
thought that this instance would have exceeded the proper bounds 
of his power." ^ A further objection, not of so formal or technical 
a character, might also have been stated, namely, that if it was 
competent to the speaker to make a motion, either with or without 

1 Hans. (3), LIX. 475, 476. But see also » Pari. Eeg. XXXH. 2. 

J. of H. 32d Coug. 1st Seis. 73. 



Chap. VII] petitions. 463 

its being seconded, and thereupon to put a question, that the peti- 
tion in his possession be received by the house, unless this motion 
were acquiesced in by the unanimous consent of the house, it 
would be necessary for the speaker to take such a part in the pro- 
ceedings, as would not be competent to him in olher cases. 

1133. The reasons, assigned by Mr. Speaker Addington, as 
quoted in the preceding paragraph, for not delivering to the house 
a petition which was sent to him, seem to imply that he thought 
the petitioners expected, in this way, to get their petition before 
the house, without a vote on the question of reception ; but it may 
be fairly presumed that if he could have otherwise presented the 
petition, consistently with the rules of order, he would have done so. 
In this country, petilions are often presented, and particularly in 
both branches of the congress of the United States, by the presiding 
officers ; but in the senate of the United States, the twenty-fourth 
rule seems to sanction the practice by taking it for granted, and in 
the house of representatives, the twenty-fourth rule expressly pro- 
vides, that " Petitions, memorials, and other papers addressed to 
the house, shall be presented by the speaker, or by a member in his 
place." A petition, presented by the presiding officer, is to be 
treated in precisely the same manner as if presented by any other 
member.' 

1134. It was stated that, with tvA^o exceptions, all petitions were 
required to be presented by members ; these exceptions are the 
petitions of the corporations of London and Dublin. The corpora- 
tion of the city of London, by the indulgence of parliament, is 
entitled to the privilege of causing its petitions to be presented at 
the bar of the house, and to have them received without their con- 
tents being opened by a member, or in any other way, communi- 
cated to the house. This indulgence is confined strictly to petitions 
for the corporation of the city of London, signed by the town 
clerk ; the corporate style of which is, " The lord mayor, aldermen, 
and commons, of the city of London, in common council assem- 
bled." Petitions from the livery of London, in common hnU 
assembled, must be signed by those individual liverymen who 
approve of its contents, and must be offered by a member, like 
other petitions.^ Petitions of the corporation of the city of London 
are presented at the bar by the two sheriffs, or by one only, if the 
other is a member of the house,^ or is unavoidably absent,^ from 

1 Reg. of Deb. X. Part I. 960, 1115, 1116. * Comm. Jour. XCII. 317. i36; Same, XC. 

2 Hatsell, III. 231, note; Same, 237, note. 506; Same, LXXV. 213. 
» Comm. Jour. LXXXIU. 279. 



464 LEGISLATIVE ASSEMBLIES. • [PaBT V. 

sickness or other cause. K the sheriffs are both members, or are 
both unable to attend, the petition may be presented by some (t^^o) 
of the aldermen, and several (four) of the common council.^ The 
mode of proceeding is as follows. The sheriffs attend in the lobby, 
\\T.th the petition, and cause the house to be informed of their 
attendance. A motion is then made, and a question put, that the 
sheriffs be called in. If this motion passes in the affu-mative, the 
sheriffs are accordingly called in to the bar, where they present their 
petition, which is received by the clerk, and by him brought to the 
table of the house, without any motion or question made therefor, 
and the sheriffs then withdraw. When they are withdrawn from 
the bar, a motion is made, and the question put for reading the 
petition. If this motion is agreed to, the petition is read by the 
clerk ; and the house, being thus made acquainted with its contents, 
proceeds to dispose of it in such manner as it thinks proper.^ If 
only one of the sheriffs should attend, or if there should be any 
other variation from the usual course of proceedings, the reason of 
the absence of the other, or of the unusual course, should be com- 
municated to the house by a member, before the question is put for 
calling in the persons in attendance, in order that a negative may 
be put upon that question, if there is any irregularity in the pro- 
ceeding.^ Petitions from the corporation of the city of DubHn are 
presented in the same manner by the lord mayor."^ This privilege 
was first extended to the city of Dubhn, at the request of the cor- 
poration, in 1813. No privileges of this sort are enjoyed by any 
individual or corporation in this country. 

1135. It w'ill be perceived, that, when petitions are presented in 
this manner, a question is to be made for calling in the persons in 
charge of the petition, and another for reading it, and, upon each 
of these questions a debate may ensue, and the proceeding be 
arrested ; but, in general, the petition is allowed to be brought in 
and read. After the reading, the proceedings are the same as in 
regard to other petitions. 

1136. It not unfrequently happens, that a single member has a 
large number of public petitions of the same character intrusted to 
him to present ; in A;^^hich case, it might be convenient both for such 
member and for the house, that the whole should be presented 
together as one petition. This is allowed by the indulgence of the 
house, if the member wiU undertake to say, that they are all in 

1 Hatsell, m. 237, note. ^ Comm. Jour. LIX. 292. 

» UatseU, m. 238. ♦ Comm. Jour. LXVIU. 299, 212, 219. 



Chap. VIL] petitions. 465 

substantially the same terms. K there are variations in them, they 
should be separately presented.^ 

1137. The rules which have thus been stated, relative to the 
presenting of petitions, belong to the practice of the house of com- 
mons. The proceedings in the lords are somewhat different. In 
the latter, as in the former, it is equally the duty of members to 
present petitions ; and, as a preliminary proceeding, to make them- 
selves acquainted with their contents, in order to see that they con- 
tain nothing impertinent, unbecoming, or improper.^ K satisfied 
as to the fitness of a petition to be presented, the lord with whom 
it is intrusted is at Hberty to present it, and to have it read by the 
clerk, without any question. But, in presenting it, it is his duty to 
open it, that is, to state its substance and prayer, before it is read;^ 
if, upon this statement, the petition appears to contain matter, 
which renders it unfit to be received, the usual course is for the 
peer by whom it is presented to withdraw it ; * if nothing of this 
kind appears, the petition is laid on the table and read. In opening 
a petition, the member may comment upon it, and upon the general 
subjects to which it refers ; and a debate may thereupon take place, 
in the same manner as upon any other subject. No question 
being necessary for reading, no debate can properly take place on 
that subject.^ 



Section V. Of certain Classes of Petitions, in reference to 
WHICH THE Preliminary Proceedings are peculiar. 

1138. Before entering upon the consideration of the proceedings 
which take place relative to petitions subsequent to their being 
received and read, it will be necessary to take notice of certain 
classes of petitions, in reference to which the preliminary steps 
differ in some respects from the ordinary course above described. 
These subjects will fiu-nish the matter of this section. The several 
classes of petitions, alluded to, are the following : — 1. Election 
petitions ; 2. Petitions relating to or affecting an election case ; 
3. Petitions containing a charge against, or implicating the character 
or conduct of, members ; 4. Petitions for public money ; 5. Peti- 
tions against bills, for the levying of a tax or duty; 6. Private 
petitions ; 7. Previous petitions. It is hardly necessary to remark 

1 Hans. (1), XXXV. 859, 860, 861; Same, ^ Lords' Jour. XIV. 22. 
873. * Hans. (3), XHI. 1185, 1187, 1188. 

« Pari. Beg. LX. 315, 316; May, 388. » Hans. (3), XIIL 1185, 1187, 1188. 



466 LEGISLATIVE ASSEMBLIES. [PaRT V. 

that what is said .under the fourth and fifth heads has no direct 
application in this country. 



Article I. Election Petitions. 

1139. In the house of commons, a system of proceeding has been 
established by a series of statutes, enacted in the year 1770, and 
since, for the trial of controverted elections and returns, according 
to which cases coming within the statute description of election 
cases are required to be determined. Petitions relating to cases of 
this sort technically called Election Petitions are presented and 
delivered in at the table, as a matter of course, and without any 
question ; subsequent proceedings are required to be instituted 
thereon according to the mode provided by the statutes ; and no 
other mode of proceeding would be legally valid or have any 
legal effect upon the return or election thus brought in question. 
Petitions, referring to, or involving an inquiry into the merits of, an 
election, but which nevertheless do not possess the characteristic 
features of an election petition, cannot be proceeded with in that 
manner, but only according to the ordinary course of proceeding. 
Hence, it is sometimes a question of importance to determine, 
whether a petition, which has been put into the hands of a member 
to present, is or is not technically an election petition ; if it is, it 
should be presented and proceeded ^\dlh in that form ; if not it 
should be presented in the usual manner. 

1140. When, therefore, a petition has been presented as an elec- 
tion petition, and, on the attention of the house being called to its 
contents, it appears not to come within the technical description of 
an election petition, the practice is to allow it to be withdrawn, in 
order to be presented in the usual manner.^ If an order has been 
already made for taking such petition into consideration on a given 
day, it would be proper previously to discharge the order ; though 
allowing the petition to be withdrawn would doubtless be equiva- 
lent to a discharge of it. On the other hand, when a petition is 
oiFered to be presented, in the usual manner, and, upon examina- 
tion of its contents, it appears to be an election petition,^ or, in sub- 
stance, an election petition,^ it may be withdrawn, in order to be 
proceeded with, according to the statutes ; or, if a petition is pre- 
sented and read, in the ordinary course of proceedings, and, upon 

1 Comm. Jour. LXXXH. Sir. » Comm. Jour. LXXXIV 786. 

s Comm. Jour. LXXXU. 436. 



Chap. VIL] petitions. 467 

the reading, it appears to be an election petition, and is within the 
time limited by the sessional order of the house, it may then be 
proceeded upon as such.^ It is presumed, that if a petition, which 
has been proceeded upon in the usual course, should at any time 
be discovered to be an election petition, the house would at once 
vacate or rescind all orders and proceedings relating to it, and allow 
it to be withdrawn. Where a petition was presented and read, in 
the usual manner, and a doubt then arose whether it was not an 
election petition, the speaker, Mr. Manners Sutton, said : " If the 
house were clearly of opinion, that it was an election petition, the 
regular course would be to withdraw it, for the purpose of again 
presenting it in that form, to be taken into consideration in the 
usual way. If the house were not satisfied on the subject, the most 
judicious ^\^ay w^ould be to adjourn the debate, to give members an 
opportunity to look into the petition, and to make up their minds." ^ 
The debate was accordingly adjourned, and the petition ordered to 
be printed. On resuming the debate, the house resolved that it 
was an election petition, and made the usual orders.^ 



Article II. Petitions relating to or affecting an Election case. 

1141. It is a general rule, that no discussion can be permitted to 
take place in the house, which may incidentally or directly affect 
the proceedings upon an election case, or prejudge it in the house, 
and thus tend to affect the committee with relation to any point 
involved in such case, until after the decision of the committee.* 
The same rule applies, and for the same reason, with regard to peti- 
tions involving inquiries into matters connected with the merits of 
an election. If a petition complaining of such election has already 
been presented and is pending, no other petition involving inquiries 
which may affect or prejudice the trial of such election can be 
received, until the election is determined.^ If no election petition 
is pending, then, in order to prevent the receiving of a petition, 
which may affect or prejudice a case which may probably arise, 
such petition must appear to involve matter which can alone be 
tried by an election committee.*^ In the former case, the petition 
may be received, when the election has been determined ; in the 
latter, it cannot be received at aU, unless presented as an election 

1 Comm. Jour. LXXIV. 45, 46, 52, 53. * Hans. (2), XVI. 1186. 

« Hans. (1), XXXIX. 149. 6 Hans. (3), I. 574. 

» Comm. Jour. LXXIV. 45, 46, 52, 63. « Hans. (3), VI. 642, 643. 



468 LEGISLATIVE ASSEMBLIES. [PaRT V 

petition.^ In reference to petitions of this description, it is imma- 
terial what the prayer is, provided only that the inquiries involved 
in them may have the effect above specified.^ When a petition is 
offered to be presented, which, upon examination, appears to con- 
tain " matter for an election petition only," the com-se is to allow 
it to be withdrawn.^ 



Article III. Petitions charging or implicating Members. 

1142. When a petition is to be presented, containing matter of 
charge agamst a member, or implicating in any manner his charac- 
ter or conduct, for the purpose of a parliamentary inquiry, it is 
necessary that such member should receive notice beforehand of the 
time when the petition is to be presented ; in order that he may 
then be in attendance in his place, and have an opportunity of 
vindicating himself, if he sees fit, against the attack upon him, at 
the time when the charge is made. If a petition of this kind is 
offered, without such notice having been previously given, it should 
be withdrawn, until the notice is given.* This course of proceed- 
ing is analogous to what takes place, when one member makes a 
charge or complaint against another. The first step in that case is 
to move, that the member in question do attend in his place on a 
certain day; and both parties attending accordingly, the former 
prefers his complaint. 

Article IV. Petitions for Relief out of the Public Money. 

1143. It is an order of the house of commons, first adopted 
December 11, 1706,^ and made a standing order June 11, 1713,'^ 
" that this house will receive no petition for any sum of money 
relating to public service, but what is recommended from the 
crown." " In consequence of the rule thus estabhshed, whenever 

1 Hans. (3), VL 642, 643. 6 Comm. Jour. XV. 211. 

2 Hans. (3), VI. 642, 643. « Comm. Jour. XVH. 417. 

8 Comm. Jour. XXXVI. 786. It -was ex- ' The uniform practice of the house of com- 

pressly decided by Mr. Speaker Onslow, that mons has applied this order not only to peti- 

a motion to bring up could only be withdrawn tions for public money, or for money relating 

by the unanimous consent of the house, to public service, but to all motions whatever 

Comm. Deb. VH. 309, 314; Comm. Jour, for grants of money, whether on public or 

XXII. 79. private grounds. HatseU, III. 195, 196. In one 

* Hans. (21, XVI. 151. See also J. of S. instance, the rule was applied to the receiving 

IV. 197, 263; Hans. (2), XVII. 302; Ann. of of a report. Comm. Jour. XCII. 478. 
Cong. L 55, 56; Hans. (3), XXXVI. 769, 855; 
Same, XXXVI. 761. 



Chap. VIL] petitions. 469 

any petition is offered, which desires relief by public money, and a 
motion is made for bringing up the petition, before the question is 
put upon this motion, it is necessary that the recommendation of 
the crown (which, however, goes only to an inquiry by a select com- 
mittee) should be signified by some member, authorized for the 
purpose ; and, if the chancellor of the exchequer, or person usually 
authorized by the crown, declines to signify this recommendation, 
the house cannot properly receive the petition.^ Under the denomi- 
nation of petitions for money relating to public service, are included 
all petitions which pray directly or indirectly for an advance of 
public money ; 2 for compounding any debts due to the crown ;3 
for remission of duties payable by any person ; * and for compensa- 
tion for losses.'' In many instances, however, petitions have been 
received, praying for compensation for losses contingent upon the 
passing of bills.*' 

1144. A petition, which states any distress, and prays to be 
relieved from the charity or munificence of the public, ought not, in 
point of form, either to prescribe the amount, or to mention the 
fund out of which that relief is to be granted. The prayer should 
be general ; and it should be left open to the consideration of the 
house, what the nature of the relief shall be, and to what extent.'^ 

1145. The rule above mentioned applies only to direct petitions 
for public money, and is not to be extended beyond the strict neces- 
sity of the case ; and, therefore, although the prayer of a petition 
probably contemplates pecuniary aid, yet if the terms of it do not 
necessarily require so strict a construction, the recommendation of 
the crown does not seem to be necessary to the receiving of the 
petition.^ When the interests of the crown are only indirectly con- 
cerned, its consent is equally necessary, but may be signified at 
any stage of the measure founded on the petition.^ 



Article V. Petitions against Tax Bills. 

1146. The house of commons found it necessary, very soon 
after the revolution, to establish a rule, " that they would not re- 
ceive any petition against a bill then depending, for imposing a 

1 Hatsell, III. 242. « Comm. Jour. XC. 136; Same, XCII. 469. 

2 Comm. Jour. XC. 42, 487, 507; Same, 74. ' Hatsell, HI. 241. 

3 Comm. Jour. LXXV. 167. 8 Hans. (2), I. 1037. 

♦ Comm. Jour. LXXX. 853. » Hans. (1), VIII. 465. 

6 Comm. /our. LXXXVH. 571 ; Same, XC. 
487. 

40 



470 LEGISLATIVE ASSEMBLIES. [PaRT V 

tax or duty : " upon the principle, that a tax generally extending in 
its effect over every part of the kingdom, and more or less affecting 
every individual, and in its nature necessarily and intentionally 
imposing a burden upon the people, it can answer no end or pur- 
pose whatever, for any set of petitioners to state these consequences 
to the house as a grievance ; ^ and, upon the further ground, that, 
if the house were to receive such petitions, it would be impossible 
ever to pass a bill for a tax, inasmuch as so many different petitions 
would be presented against it, that it would be impossible to hear 
counsel separately upon them aU, within the usual time of the 
duration of any one session of parliament,- and in the mean time, 
the nation might be undone for want of an immediate supply 
for the pubhc use.^ It is remarkable, that this rule was always 
nugatory as regarded petitions from the city of London, which, as 
has aheady been seen, are received by the indulgence of the house, 
without their contents being first made known.* 

1147. The practice, under this rule, which has recently been 
abrogated, was always confined to petitions against a tax for 
the supply of the current year ; and vv as never applied to petitions 
offered in a subsequent session, praying the repeal or reconsidera- 
tion of the taxes imposed in a former session. No public service is 
delayed by receiving and considering such petitions ; nor can the 
time of the house be better employed than in endeavoring to 
lighten the bui-dens of the people.^ In 1842, when the practice of 
the house of commons relative to public petitions, which had been 
gradually introduced for the purpose of facilitating the proceeding 
upon them, was revised and reduced to the form of standing or- 
ders, an order was added, by which petitions against tax biUs were 
put upon the same footing with other petitions of a public character 
and allowed to be presented and received in the same manner.^ 



Article VI. Private Petitions and Previous Petitions. 

1148. By the standing orders of both houses of parliament, all 
private bills are required to be brought in upon petition ; ' and there 
is an order also made in each, at the commencement of every ses- 
sion,^ limiting the time within which petitions for private bills are 

1 Hatsell, m. 233, 234. The foregoing rule ^ Hatsell, IIL 235, note, 238. 

was never adopted in any part of this country. ^ Hans. (3), LXII. 296, 307; May, 391. 

2 Hatsell, in. 236. ' May, 486. 

8 Comm. Deb. VII. 310, 311. * Comm. Standing Orders, No, 104. 

♦Hatsell, in. 237, note. 



Chap. VIL] petitions. 471 

required to be presented ; after the expiration of which, no petition 
will be received, except by special leave of the house. In conse- 
quence of the existence of this order, it is sometimes an important 
question to determme, whether a petition, which is offered to be 
presented, is or is not a private petition. On tliis question, as on 
others of a similar nature, the speaker gives his opinion, but it is 
for the house to decide. If t<he speaker's opinion is that the petition 
is a private one, the member presenting wiU withdraw it.^ 

1149. If a petition, which has been intrusted to a member to 
present, is a petition for a private bill, and the time for the pre- 
sentation of such petition has elapsed, it is necessary, in order to 
obtain the permission of the house to present it, to present a peti- 
tion, praying for leave to present a petition for the bill, and stating 
peculiar circumstances which account for the delay, and justify 
the application for a departure from the standing orders. On this 
petition being presented, leave may immediately be given or re- 
fused ; or the petition may be referred to a select committee, and, 
upon their report, leave may be granted or refused, either immedi- 
ately, or after further proceedings upon the report.^ 



Section VI. Of the present Practice with regard to the 
Presentation of Petitions. 

1150. The right of petition, — being the only means by which 
the people have it in their power to concentrate and express their 
opinions relating to public measures in such a manner as to bring 
them directly to the knowledge of the legislature, — has been exer- 
cised for the last few years, to an extent wholly unprecedented in 
former times. In the five years ending in 1831, the number of 
public petitions presented to the house of commons, was twenty- 
four thousand four hundred and ninety-two ; in the five years end- 
ing in 1843, the number presented was ninety-four thousand two 
hundred and ninety-two ; and in the five years ending in 1848, was 
sixty-six thousand five hundred and one.^ 

1151. It has been seen from the statement above made as to 
the regular parliamentary course of proceeding in receiving peti- 
tions, that the presentation of a petition, even though no subse- 

1 Pari. Reg. LXII. 261. on motion, without any previous petition. See 

* May, 532. In one case, leave was given, Comm. Jour. LVII. 259. 

8 May, 389. 



472 LEGISLATIVE ASSEMBLIES. [PaRT V 

quent proceedings were intended to be founded upon it, might, 
though it did not usually, or to any inconvenient extent, give rise 
to a debate ; it being in the power of the member presenting a 
petition to speak at length if he chose, on the topics suggested by 
it, either as preliminary to or after making the motion that it be 
brought up, and also upon each and every one of the motions that 
might be subsequently made for the pprpose of disposing of it. 

1152. These two circumstances, namely, the vast increase in the 
number and variety of public petitions, and the unlimited and 
illimitable debate, in which it became the practice to indulge in 
presenting them, were found to create so many interruptions and 
delays to the progress of other public business in the house of com- 
mons, that it became absolutely necessary to make some attempt 
to reconcile if possible, the conflicting claims to the attention of the 
house to which they gave rise. 

1153. It was at first attempted to pro^dde a remedy for the in- 
convenience, by devoting more time to the receiving of petitions. 
For this purpose, it appears to have become the practice in the 
year 1830, for those members who had petitions to present, to at- 
tend each day in the house at ten o'clock in the morning; the 
names of the members of the house were then called in rotation 
by some one of them, and the names of all who did not answer, 
were struck out ; the remaining names, being those of the members 
present, were then put into an urn and dra^m out, one by one, and 
arranged in a list in the order in which they were drawn. At 
three o'clock the speaker attended, and as soon as a house was 
formed, proceeded to call the names as they stood on the list ; and 
as they were called the members presented their petitions and ad- 
dressed the house, if they thought proper, in the usual manner. 
At five o'clock, the public business, as it stood upon the order book, 
commenced ; and when this was over, the petition list, if not pre- 
viously finished, was again taken up and proceeded with until it 
was completed or an adjournment took place. K the petition list 
was not gone through wdth, the members who had not been reached 
attended again on some other day for the purpose of being put 
upon the list. 

1154. At the commencement of the session in 1833, in order 
still further to facilitate the presentation of petitions, and the trans- 
action of private business, morning sittings were established fi-om 
twelve to three o'clock, at which twenty members only were re- 



Chap. VIL] petitions. 473 

quired to form a house ; ^ the public business commencing a*? 
before, at five o'clock, and forty members being still necessary to 
form a quorum for that purpose. At the same time, some restrain* 
was put upon the liberty of speaking on the presentation of pe- 
titions, by the adoption of a resolution, which was introductory 
of important changes in this branch of parliamentary proceedings. 
By the resolution, it was provided, that when a member offered to 
present a petition, he should only be allowed to state the contents 
and prayer of it ; the petition should then be brought up to the 
table by the direction of the speaker, and read by the clerk ; and 
no member should be allowed to speak or put any question relative 
to such petition, unless it contained matter in breach of the privi- 
leges of the house, or was of such a nature, that, according to the 
rules and orders of the house, it could not be received.^ The right 
of speaking on petitions was thus altogether taken away, except in 
the two classes of cases referred to, until after they had been re- 
ceived and read ; leaving members still at liberty to speak on all 
the subsequent motions as before. This resolution was limited in 
its duration to the session, and, it is believed, was not renewed 
afterwards for more than a single session. 

1155. Another important regulation was also subsequently 
introduced in the same session of 1833, with reference to public 
petitions. This was a resolution for the appointment at the com- 
mencement of each session, of a select committee, "to which shall 
be referred all petitions presented to the house, with the exception 
of such as complain of undue returns, or relate to private bills ; and 
that such committee do classify the same, and prepare abstracts 
thereof in such forms and manner, as shall appear to them best 
suited to convey to the house all requisite information respecting 
their contents, and do report the same from time to time to the 
house ; and that such reports do in all cases set forth the number 
of signatures to each petition ; and that such committee have 
power to direct the printing in extenso, of such petitions, or of such 
parts of petitions, as shall appear to require it."^ The functions of 
this committee, which has since been regularly appointed, seem to 
have superseded, in a great degree, the necessity of motions to print, 

1156. The morning sittings continued to be held during the ses- 

1 This is the ground upon -which Chancellor 2 Comra. Jour. LXXXVIII. 10; Hans. (3) 
Kent states, (Kent's Commentaries, I. 234, XXXVI. 437, 438. 
note,) that in 1833, the number necessary to ^ Coram. Jour. LXXXVIII. 95. 
form a quorum in t!ie house of commons had 
been reduced from forty to twenty. 

40* 



474 LEGISLATIVE ASSEMBLIES. [PaET V. 

sions of 1833 and 1834, after which, not being found to be efFect- 
Tial, they were discontinued; nor, after the same period, does it 
appear, that the resolution of 1833, restricting debate, on petitions, 
was renewed. On the accession of IVIr. Abercromby to the speak- 
ership in 1835, the house, upon his suggestion, reverted back to and 
adopted as a rule the ancient practice, in presenting petitions, 
according to which the member offering a petition usually confined 
himself to a statement of the contents and prayer, v-dthout under- 
taking to speak at length upon the subject of the petition. This 
became subsequently the established practice, with certain excep- 
tions, in which the importance or urgency of the subject required a 
different course. In 1842, certain resolutions, embodying the under- 
stood and established practice of the house, relative to the presenta- 
tion of public petitions, and the proceedings thereon, "were agreed 
to and declared to be standing orders. 

1157. The present practice of the house of commons, wdth refer- 
ence to petitions, as regulated by these orders, and the antecedent 
usage of the house, is as follows. In the first place, it is required 
by an order of March 20, 1833, that every member presenting a 
petition to the house should put his name at the beginning thereof; ^ 
which is always printed with the petition, in the reports of the 
committee on public petitions. 

1158. The members, who are desirous of obtaining precedence 
in presenting the petitions inti'usted to them, attend at the table of 
the house, at half-past three ; or, when the house meets at an 
unusual hour, at a quarter of an hour before the time appointed for 
the speaker to take the chair ; they then baUot for precedence, and 
their names are entered on a list accordingly. 

1159. The time appropriated for presenting petitions is at the 
conclusion of the private business. At this time, the speaker calls 
the names of the members separately as they stand on the fist, and 
they then present their petitions. When, however, petitions relate 
to any motion or bill set down for consideration, they may be pre- 
sented before the debate commences, at any time dm-ing the sitting 
of the house. In the case of a bill, they should be offered imme- 
diately after the order of the day for proceeding on it has been 
read, and before any question has been proposed.^ 

1160. When a member offers to present a petition, not being a 
petition for a private bill, or relating to a private bill before the 
house, he is requfied to confine himself to a statement of the 

1 Haos. (3), LXXIV. 714,- 715. "- May, 392. 



Chap. VIL] petitions. 475 

parties from whom it comes, the number of signatures attached to 
it, the material allegations contained in it, and to the reading of the 
prayer of the petition. 

1161. When a petition, on being offered to be presented, is thus 
opened to the house, it is the duty of the speaker, provided the 
petition contains nothing in breach of the privileges of the house, 
and is also proper, according to the rules and usual practice of the 
house to be received, to direct it to be brought to the table at 
once, and there read by the clerk, if required, without allowing 
any debate, or any member to speak, upon or in relation to such 
petition. 

1162. If a petition so presented relates to any matter or subject, 
which the member presenting it is desirous of bringing before the 
house, and on which he states it to be his intention to make a 
motion, he may then give notice that he wiU make a motion, 
on some subsequent day, that the petition be printed with the 
votes. 

1163. K any such petition complains of a present personal griev- 
ance, for which there is an urgent necessity for providing an instant 
remedy, the matter contained in it may be brought into immediate 
discussion, on its being presented. 

1164. All other petitions, after having been ordered to lie on the 
table, are, without any question being put, referred to the committee 
on public petitions. The duty of this committee is to classify, 
analyze, and make an abstract of the petitions so referred to them, 
and, from time to time, report thereon to the house. The reports 
of the committee are printed twice a week, and point out, under 
classified heads not only the name of each petition and of 
the member by whom it was presented, but the number of signa- 
tures, the general object of each petition, and the total number of 
petitions and signatures, in reference to each subject ; and when- 
ever the pecuHar arguments and facts, or general importance of a 
petition require it, such petition is printed at fuU length in the 
appendix.^ 

1165. From the foregoing statement of the existing practice of 
the house of commons relative to public petitions, it seems clear, 
that while measures are taken to bring the popular voice as 
expressed by petitions to bear on the legislature, in the only man- 
ner in which it can be legitimately entitled to have any effect, that 
is, by the number and character of the petitioners, and the strength 

1 May, 391, 392. ■ 



476 LEGISLATIVE ASSEMBLIES. [PaRT V. 

and pertinency of their representations and arguments ; no restric- 
tion is put upon debate, in any case, in which it is really necessary 
It should be recollected, also, that the restricting of debate upon a 
petition does not resti'ict it upon the subject-matter of the petition. 
A petition is not, in itself, introductory to legislative measures. 
Every resolution or bill must commence with a distinct motion, 
which may be made mthout reference to any petition, but, in pro- 
posing which, a member is at liberty to enforce the claims of aU 
petitioners, who have presented their views to the house.^ 

1166. In the house of lords, there has been no such increase in 
the number of public petitions, as has taken place in the house of 
commons, within the last few years ; no inconvenience has arisen 
fi:om the debates which have occm-red on presenting them ; and 
consequently no necessity has been felt for the introduction of any 
general system of classification and pubhcity.^ 

1167. The same causes which have induced the house of com- 
mons to adopt the above-described regulations, with regard to 
petitions, have also operated in this country, and have led to the 
establishment of certain rules in the house of representatives, in 
congress, by which it is provided that petitions shall not be 
debated, unless the house shall otherwise decide, on the day on 
which they are presented, and that members, having petitions or 
memorials to present, may hand them to the clerk, with an indorse- 
ment thereon of their names, and of the reference or disposition of 
the same. In the latter case, the petitions or memorials are to be 
entered on the journal, subject to the control and direction of the 
speaker. Whether the above or similar rules may become neces- 
sary, to facilitate the proceedings on petitions, in any other assem- 
bly, will of course depend on the pressure of the business which 
ordinarily comes before it. 



Section VII. Of subsequent Proceedings on Petitions. 

1168. The proceedings on a petition, subsequent to its presenta- 
tion and reception, depend partly upon the subject-matter, and 
partly upon the feeling with which it is regarded by the house. If 
the subject is one upon which the house can act at once, and is 
ready to do so, it may proceed immediately with the considera- 
tion of it; otherwise, the petition may be ordered to lie on the 

1 May, 391. 2 May, 389. 



Chap. VII.] petitions. 477 

table, either generally or until a specified time, or a future day may 
be assigned for its consideration. In the latter case, the petition is 
an order of the day for the day so assigned, and to be proceeded 
with and considered accordingly. 

1169. When a petition is taken into consideration, whether 
presently, or at a future time assigned, if it alleges the existence of 
facts, which require to be investigated, the inquiry may be eiiher 
by the house itself, or before a committee to whom the petition 
may be referred for the purpose. In both cases, the petitioners are 
to be heard, with their witnesses and evidence, together with par- 
ties adversely interested, if they desire it, in the manner already 
described in the fifth chapter of this part. 

1170. K the hearing takes place before the house itself, it may 
be followed by proceedings proper for the immediate disposition of 
the matter, in the form of an order or resolution, according to the 
nature of the subject, expressing the opinion of the house, or direct- 
ing, or permitting something to be done, as, for example, that a biU 
be brought in agreeably to the prayer of the petitioner. 

1171. If the petition is referred to a committee, by whom the 
subject of it is heard and investigated, the committee proceeds with 
the investigation, and reports upon the matter, as in other cases; 
and, upon their report, the house institutes such further proceedings 
as may be necessary and proper. 

1172. Petitions may be disposed of, as we have seen, by the 
house itself acting directly, and without the intervention of a com- 
mittee ; in which case, out of the great variety of motions that may 
be made for the purpose, those most usually adopted lead to the 
same disposition of the subject with the resolutions reported by a 
committee, and, therefore, require no further separate notice. But 
though petitions may thus be disposed of, the most common course 
is to refer them, in the first instance, to a committee. The form in 
which this reference takes place in parliament, and in this country 
when any form is made use of, requires the committee to examine 
the matter of the petition and to report the same, with its opinion 
thereupon to the house.^ In general, petitions are referred in our 
legislative assemblies, simply, and without any words expressive of 
the committee's authority ; in which case it will have the authority 
above mentioned, together with such additional power as may be 
specially conferred upon it, and such other as may belong to it by 
the rules and orders of the assembly, 

1 J. of H. I. 129. 



478 LEGISLATIVE ASSEMBLIES. [PaRT V. 

1173. Under the authority above mentioned, or of that which 
results from the simple reference of a petition, a great variety of 
reports, depending, of course, upon the nature of each petition, may 
be made, but they may aU be included in the three different classes 
of, .first, reports in favor of granting the prayer of the petitioners ; 
second, against granting the prayer ; or, thirdly, declining to grant 
it, but without concluding the petitioners. These reports are con- 
sidered and agreed to like other resolutions, and may be amended 
in such manner, as, for example, so as to substitute one for another, 
as the assembly may direct. 

1174. K a resolution is agreed 'to for granting the prayer of the 
petitioners, and this is of such a nature that it can only be effected 
by passing a bill in their favor, the assembly may thereupon take 
the necessary steps for that purpose; or the committee may be 
authorized either specially or generally to report a biU at once. If 
a resolution is agreed to against granting the prayer of a petition, 
this is a regular judgment of the assembly upon the claim which 
effectually precludes its being opened or set up afterwards. K the ' 
assembly agrees to a resolution in the third form, it is usually ex- 
pressed in these terms, namely, that the petitioners have leave to 
withdraw their petition. In this case the petition, although not 
granted, is not refused, but may be withdrawn and presented again. 



LAW AND PEACTICE 



LEGISLATIVE ASSEMBLIES. 



PART SIXTH. 



OF THE FORMS AND METHODS OF PROCEEDING IN 
A LEGISLATIVE ASSEMBLY. 



(479) 



LAW AND PRACTICE 



ov 



LEGISLATIVE ASSEMBLIES. 



PART SIXTH. 

OF THE FORMS AND METHODS OF PROCEEDING IN 
A LEGISLATIVE ASSEMBLY. 



FIRST DIVISION. 

« 
MOTIONS. 



CHAPTER FIRST. 

OF MOTIONS IN GENERAL. 

Section I. Introductory. 

1175. The judgment or will of any number of persons, consid- 
ered as an aggregate body, is that which is evidenced by the con- 
sent or agreement of the greater number of them. In order to as- 
certain the existence of this consent or agreement in reference to 
any particular subject, there are two methods of proceeding, which 
may be adopted. 

1176. The first which is also the simplest and most obvious, 
consists merely in the several members expressing their individual 
opinions on the subject before them, one after another, in such 

41 (481) 



482 LEGISLATIVE ASSEMBLIES. [PaRT VL 

manner as they may think proper, and continuing thus to express 
their various views, until some one opinion or judgment is seen to 
unite the suf&ages of a majority. This mode is sufficient for all 
the purposes of a small body of men, — such as constitutes boards 
of directors, trustees, and the like, — but is whoUy inadequate to 
the business of an assembly of any considerable magnitude. 

1177. The other mode, wliich is alone practicable in a numerous 
assembly, consists in the submission of one or more propositions 
in the form of questions to the assembly, upon which the members 
express then' opinions by a simple negative or affirmative ; the 
proposition thus put to the question being adopted or rejected ac- 
cording as the votes of a majority are given in its favor or against 
it. Li this mode of proceeding, the several propositions may be 
submitted and put to vote one after another, until some one is 
agreed to ; or they may all, in the &:st instance, be announced, and 
then put to vote separately. This method, thus simply stated, how- 
ever sufficient it might be for the purposes of an assembly convened 
for a special object, and to sit but for a short time, and with but 
limited pov^^ers, in order to be adequately adapted to the purposes 
of legislation in modern times, has been expanded into a system of 
rules by the application and use of which, the judgment of a delib- 
erative assembly, in reference to every topic submitted to it, may, 
for the most part, be ascertained with precision, promptness, and 
facility. 

1178. According to the system, which has thus become estab- 
lished, some one of the members begins by submitting to the others 
a proposition, in reference to the subject which he wishes to bring 
forward, or to that under consideration ; tliis proposition is ex- 
pressed in such a form of words, that, if assented to by the requisite 
number, it will purport to express the judgment or will of the assem- 
bly ; it then forms a basis for the further proceedings of the assem- 
bly; and is assented to, rejected, or modified, according as it 
expresses or not, or may be made to express, the sense of a ma- 
jority of the members. The different proceedings, which take 
place, from the first submission of a proposition, through aU the 
changes it may undergo, until the final decision of the assembly 
upon it, constitute the subject of the rules of debate and proceeding 
in deliberative assemblies. 

1179. Li the British parliament, in which the system of parlia- 
mentary proceedings has been elaborated and perfected, by the 
practice of three centuries, many changes in the forms made use of 
have taken place, which will be pointed out in the course of the 



Chap. L] motions. 483 

work. In reference to the subject now under consideration, the 
change has been such as is indicated in the preceding paragraphs. 

1180. In the earliest periods of the separate existence of the 
house of commons, as an organized body, the forms of proceeding 
made use of to ascertain the sense of the house seem to have been 
nothing more than the propounding of one or more questions for 
their simple assent or dissent. 

1181. In subsequent times, when the commons had assumed 
more power in the State, and had begun to inquire into and investi 
gate subjects originating with themselves, it became the practice 
when any topic was introduced, upon which the members expressed 
their several opinions, for the speaker, at the close of the debate, to 
frame a question or questions corresponding to the general tenor of 
the speeches on the one side and on the other, and to put those 
questions to the vote of the house. 

1182. At a later period, this practice became somewhat modified ; 
the speaker still framing the question, but not, in all cases, waiting 
tiU the close of the debate. The mode of proceeding is thus stated 
by Scobell : ^ "If the matter moved do receive a debate pro et 
contra^ in that debate none may speak more than once to the 
matter; and, after some time spent in the debate, the speaker col- 
lecting the sense of the house upon the debate, is to reduce the 
same into a question, which he is to propound : to the end, the 
house, in their debate afterwards, may be kept to the matter of that 
question, if the same be approved by the house to contain the sub- 
stance of the former debate." This mode of proceeding, which pre- 
vailed previous to the restoration,^ continued to be used from that 
period, until it was laid aside, and the present system established, 
in the time of Mr. Onslow, who was speaker of the commons 
during the entire period of the reign of George the Second. It was 
attempted on one occasion, to be revived by Sir Fletcher Norton,^ 
w^hen first chosen speaker in 1770 ; and, although no notice was 
taken of the circumstance, at the time, in consequence of the thin- 
ness of the house ; it was nevertheless animadverted upon in a sub- 
sequent debate, as putting a dangerous power in the chair ; and 
the experiment was not repeated. Though this practice has long 
been discontinued, traces of it still remain in many of the forms of 
proceeding. 

1183. In consequence of this change of practice, it became an 
established axiom, that the motion first introduced should be first 

1 Scobell, 22. 3 Cav. Deb. I. 458, 473. 

2 Hatsell, II. 112 Grey, II. 235 ; Same, III. 
165; Same, X. 94. 



484 LEGISLATIVE ASSEMBLIES. [PaRT VI. 

determined by a corresponding question, unless it was superseded 
for the time being, by some other motion or question of a previous 
nature before proceeding to any other business. This maxim 
would seem to imply, that every matter of business must be com- 
pletely finished before another is introduced, so that the house 
should have but one matter pending before it at the same time ; 
but in practice the operation of this principle is confined to the 
pending question ; there can be but one question pending at the same 
time, though there may be, and always are, in every legislative 
assembly, numerous matters of business in various stages of pro- 
gress, and all pending together. In the two houses of the British 
parliament, the tendency has been to dispose of pending business 
in the simplest manner, and by means of the fewest possible 
motions ; while in this country, a greater variety and number of 
motions previous in their nature have been employed. In our legis- 
lative assemblies, it is usual not only to specify by rule, the particu- 
lar motions which alone may be used for the disposition of other 
business, but also to designate the order in which they may be 
severally moved, and put to the question, so as to separate one from 
another, and be all pending at the same time. 

1184. Every matter, which is the subject of consideration in a 
deliberative assembly, can only be determined upon a question put 
by the presiding officer, and resolved in the affirmative or negative, 
as the case may be ; ^ and, according to the modern system of pro- 
ceeding in parliament, every question is founded on a motion made 
by some member, in such form as he thinks proper, and seconded 
or approved by another rriember, in the same form. 

1185. AVhen a proposition is made by two members in this 
manner, it is the duty of the speaker to state it to the house in the 
precise terms in which it is moved ; when thus stated, it becomes a 
question for the decision of the house ; and must be disposed of by 
the house in one way or another, before it can proceed with any 
other business. In the lords, when a motion has been made, a 
question is proposed, " that that motion be agreed to ; " but in the 
commons, a motion when seconded becomes itself the question 
without any such formality.^ 

1186. In this country, the rule of the house of commons gener- 
ally prevails ; every motion when seconded is propounded by the 
presiding officer as a question for the decision of the assembly. 
But a practice in this respect not dissimilar to that of the house of 
lords was formerly in use in both branches of congress, and per- 

1 May, 209. 2 May, 216. 



Chap. I.] notice of motion. 485 

haps else "where, by which a question was made, when a motion 
was introduced, whether the assembly would consider that motion 
or not.^ This proceeding was called Ihe question of consideration, 
and seems to have had the effect, in part, of the previous question. 
It is now seldom or never resorted to in practice, and the only trace 
of its existence is found in a rule of the house of representatives, 
that it shall not be put, unless it is demanded by some member, or 
is deemed necessary by the speaker. 



Section II. Notice of Motion. 

1187. Although it is thus the right of members to originate 
propositions, at their pleasure, for the consideration of the house ; 
and any member, in possession of the house, may make any motion 
he thinks proper,- yet, in practice, this right is subject in the house 
of commons to some restriction as to the time of its exercise ; it 
having been the custom for many years for members to give notice, 
one day at least beforehand, of the motions which they intend to 
make ; and this usage has now become so firmly established, 
though without the sanction of any express rule, that, with some 
few exceptions only, the house of commons will not allow a motion 
to be made, unless notice has been previously given.-^ 

1188. The principal object of requiring these notices is, by afford- 
ing the members a knowledge of the subjects, which are to be 
brought forward for discussion,'^ to prevent the house from being 
surprised into the passing of votes, which it might be necessary 
afterwards to rescind ; ^ and the practice has accordingly been found 
to conduce very much both to the convenience of the members, and 
to the transaction of the public business.'' 

1189. The reason, which Hes at the foundation of this usage, 
suggests the exceptions, to which it is subject. Motions, which do 
not ordinarily meet with opposition, may be brought on by consent 
of the house, without any previous notice ; but if any member 
objects, they cannot be pressed. Questions of privilege, also, and 
other questions in reference to matters suddenly arising, may be 
considered without previous notice.'^ 

1190. In order to enable a member to give notice of a motion, 

1 The objection must be made, before the ^ -^i^y^ 213. 

motion has been discussed, oi- the question of * Hans. (2), XV. 195. 

consideration will not be put. J. of H. 17th * Hans. (1), VI. 113; Same, 229, 230, 231 

Cong. 1st Sess. 297. « Hans. (3), XXVI. 590. 

a Hans. (3), IX. 694. ' May, 214; Hans. (3), XXX. 8. 

41* 



486 LEGISLATIVE ASSEMBLIES. [PaET VL 

where the subject is not regulated by any rules, he must obtain 
possession of the house, for that purpose, in the same manner as if 
he was going to make a motion ; but if a member is in possession 
of the house for some other purpose only, as, for example, to 
explain, he cannot take that opportunity to give notice of a motion ; 
nor can a notice of motion be regularly given by a member in the 
course and as a part of his speech, while addressing the house in 
debate.^ 

1191. When the practice of giving notice of motions was first 
introduced, members gave their notices in the same manner that 
they made motions, or participated in any of the other ordinary 
business of the house ; but, within a few years, the mode described 
in the following paragraphs has been adopted in the house of com- 
mons, and is now established as the course of proceeding in giving 
notices in that house ; in the house of lords the pressui-e of busi- 
ness is not so great as to requu-e any strict rules in regard to 
notices.^ 

1192. When a member desires to give notice of a motion, and 
has fixed upon the most convenient tune to bring it forward, he 
attends on some day at the meeting of the house ; and, imme- 
diately after prayers, when the house has been made, enters his 
name on what is called the notice paper ; which is placed upon the 
table, for the purpose of receiving the names of all who desire to 
give notice of motions. Each name on this paper is numbered ; 
and, when the speaker calls on the notices, which he usually does 
at about half past four o'clock, the clerk puts all the names into a 
glass, and dravv^s them out one by one. As each number is drawn, 
the name of the member to which it is attached on the notice-paper, 
is called. Each member, as he is called, rises and reads the notice 
which he is desirous of giving, and afterwards takes it to the table, 
and there delivers it fairly written out, and with the day named on 
which he proposes to make his motion, to the second clerk assistant, 
who enters it in the order book.^ 

1193. K a member desires to give more than one notice, at the 
same time, he must "wait, before giving a second, third, etc., until 
the other naines on the Hst have been called over ; ^ but one mem- 
ber may give a notice for another, who is absent at the time,° (for 
if present members must act for themselves,)*^ by putting the name 



1 Hans. (3), H. 63, 64; Pari. Eeg. XXII. 6. * May, 213. 

2 May, 210. 5 Hans. (1), H. 439. 

8 May, 212, « Hans. (3), LXVHI. 1002. 



CllAP. L] NOTICE OF MOTION. 487 

of such member on the list, and answering for him when his name 
is called.^ 

1194. It is not necessary that the notice should comprise all the 
words of the intended motion ; but if the subject only is stated in 
the first instance, the question, precisely as it is intended to be pro- 
posed, should be given in the day before that on which it stand:* in 
the order book, so as to be printed at length in the votes of the 
day on which it is to be made.^ 

1195. " No positive rule has been laid down as to the time 
which must elapse between the notice and the motion ; but the 
interval is generally extended in proportion to the importance of 
the subject. Notices of motions for leave to bring in bills of trifling 
interest, or for other matters to which no opposition is threatened, 
are constantly given the night before that on which they are 
intended to be submitted to the house ; and there is a separate 
notice paper for u)iopposed returns, for which no ballot is taken, 
and motions entered upon it may be brought forward whenever a 
convenient opportunity arises. For the purpose of gaining prece- 
dence, the more usual mode and time for giving notices are those 
already described ; yet it is competent for a member to give a notice 
at a later hour, provided he does not interrupt the course of busi- 
ness, as set down in the order book." ^ 

1196. The form of giving notice of a motion is sometimes 
adopted for purposes wholly foreign from its proper object ; as, 
where a member, under pretence of giving notice of a motion, 
expresses his opinion of some pending measure in terms of severity, 
contempt, or ridicule, which would be unparliamentary if used in 
debate, or where a member, in the form of a notice, introduces into 
the order book what in point of fact is a speech, for the purpose of 
having it printed with the votes. This is not an evil of much prac- 
tical importance ; nor is there perhaps any mode of preventing it ; 
but, in resorting to this expedient, as a mode of expressing opinion, 
members should be careful not to give oflence ; as the house may 
for such a cause, direct the notice to be expunged ; * or, in a grave 
case, might subject the member offending to the censure or other 
punishment of the house. 

1197. The only object of a notice being to secure the house 
against surprise, every thing, in the form of argument or debate, 
at the time of giving it, either by the member himself, or by others, 

1 May, 213. * May, 215; Huns. (3), XXIX. 304,305,306; 

a May, 213. Same, LXVI. 306, 307. 

8 May, 213. 



488 LEGISLATIVE ASSEMBLIES. [PaRI VI. 

is irregular ;^ but, where a member merely stated the subject of Ma 
motion without stating the motion itself, and was called upon to 
explain, Mr. Speaker Addington said it would not be disorderly 
to suffer him to state the grounds of his motion.^ 

1198. At any time previous to the day fixed for the motion, it is 
competent for the member giving the notice to withdra"w it alto- 
gether,-^ or to postpone it to a future day,'^ without giving any 
reason for his conduct ; ^ consequently, neither can the member 
himself be permitted to address the house, nor can any debate be 
allowed to take place, on the occasion of such withdrawal or post- 
ponement.^ 

1199. When a member has given notice of a motion to be 
brought forward on a particular day, it is not contrary to strict par- 
liamentary usage, for another member to give notice of a motion on 
the same subject, and to the same effect, for a previous day ;" though, 
as it is understood to be the privilege of a member, who has under- 
taken a particular business in the house, not to have that matter 
taken out of his hands by another member, without his consent, 
such an interference might, under some circumstances, be a breach 
of parliamentary courtesy.^ 

1200. It is, however, contrary to the established usage, for a 
member to waive or withdraw his notice for a particular day, foj 
the purpose of accelerating it, that is, bringing it forward on a da} 
previous to the day originally fixed ; although such an arrangement 
might be for the mutual accommodation of those members present 
who were interested in the subject; inasmuch as what might be 
thought by the members present a matter of convenience, might 
appear quite otherwise to those who were absent;^ and, for the 
same reason, it is not competent for a member to bring forward a 
motion, of which he has given notice for a future day, by moving 
it as an amendment to another motion pending on a previous 
daj 10 

1201. In order to apportion the public business according to the 
convenience of the house, it is usual for the house of commons, at 
the commencement of each session, to set apart certain days on 
which the " orders of the day," or matters which the house has 

1 Pari. Eeg. LXL 209; Cong. Globe, IV. 80. ' Hans. (3), XV. 390; Same, (1), V. 151, 

2 Hans. (1), II. 110. 152. 

3 Hans. (2), XVH. 578. s Parf. Reg. (2), IX. 132. 
* Hans. (1), H. 110. 9 Hans. (1), XXHI. 394. 

6 Hans. (2), XVH. 578. lo Hans. (8), XXI. 225; Same, XXX. 8. 

«Hans. (1), n. 110; Same, (2), XVH. 578; 
Same, (1), XXXH. 337; Same, XXXIU. 531. 



Chap. L] notice of motion. 489 

already agreed to consider on some particular day, shall be con- 
sidered and disposed of, before proceeding upon motions of which 
notice has been given, and to reserve the other days of the week for 
the consideration of original motions, before proceeding with the 
orders of the day.^ 

1202. When, therefore, the time is proper for proceeding with 
notices of motions, that is, after the orders of the day have been 
disposed of, on those days on which orders of the day have prece- 
dence, and at the commencement of the sitting on those days, on 
which notices have precedence, the speaker calls on the members 
who have given notices of motions for that day, in the order in 
which they stand on the list, who thereupon proceed with their 
several motions, until they are aU disposed of.^ 

1203. Each member, whose name is on the list, may, when he 
is called on, either make the motion of which he has given notice ; 
or withdraw his notice for that day and renew it for another ; or he 
may decKne proceeding with it altogether ; and, in the two latter 
cases, — as it is optional with the member to proceed or not, as he 
pleases, and as no other member has entitled himself to proceed by 
giving the requisite notice, — the house has no power to proceed 
with the motion.^ 

1204. If a member, who has given notice of a motion, is not 
present to respond to his name when it is called, his turn is lost, 
even although he should only have left the house for a few 
moments.^ 

1205. It is not strictly regular for a member, when he comes to 
make the motion of which he has given notice, to vary it materially 
from the form, which he has adopted in his notice ; as, for example, 
where the notice was for a motion to hear counsel at the bar on a 
particular subject, and the motion as made was for the appoint- 
ment of a select committee on the same subject;^ but if the motion 
as made do not so far differ from the notice as to change the charac- 
ter of the debate, a variation in point of form merely would not 
seem to be material. 

1206. K, at the time fixed by the notice, the motion is not made, 
(whatever may be the cause,) the notice is said to be dropped, and 
the motion cannot regularly be proceeded with by the member, as 
a matter of right, until revived by a fresh notice. In sucjh a case, 

1 May, 210. * Hans. (3), Lll. 1247. 

2 Hans. (3), VHI. 698, 707. * Hans. (3), LXXVHI. 717. 
» Pari. Reg. XXXH. 43. 



490 LEGISLATIVE ASSEMBLIES. [PaKT VI. 

hoT\ ever, the house may, by consent, if they see fit, allo'w the 
motion to be made.^ 

1207. There is another restriction as to the time of making 
motions, to which allusion is made in the works on parliamentary 
la^^, and which consequently requires some explanation ; though 
having the same general purpose in view with the modern usage as 
to notices, it appears to have been in a great measure if not wholly 
superseded, as to its practical operation, by the system of notices 
of motions, which has just been explained. With a view to pre- 
vent motions of importance from being made, after the house has 
proceeded on the particular business appointed for the day, and 
where such motions may be a surprise on those members who have 
left the house, orders have been adopted, from time to time, by the 
house of commons, prohibiting the making of any new motion after 
a certain hour ; the effect of which orders was, that after the hour 
thus specified, no new motion could of course be made, without 
the special leave of the house. In 1695, this hour vv^as fixed at one 
o'clock ; in 1701, at two ; in 1728, at four ; and, in 1812, it was 
stated in debate, and not denied, to be at five o'clock.^ 

1208. Tliis rule has been modified, since its first introduction, by 
a usage, which, when the orders of the day are proceeded upon, 
makes that circumstance equivalent to the arrival of the hour, after 
which no new motion can be made "udthout special leave. On 
those days, therefore, on which the orders of the day are not pro- 
ceeded upon, no new motion can be made after the hour fi:xed by 
the rule, ^dthout special leave, unless the member making it has 
entitled himself to do so by giving the requisite notice. On those 
days, however, on which the orders of the day axe proceeded upon, so 
long as there remain any orders of the day not disposed of, it is not 
necessary to have leave to make a new motion, though it should be 
later than the hour ; but, when the orders of the day have been all 
read and disposed of, no new motion can be made without leave, 
though it should be much earlier than the hour fixed by the rule. 
The new motions, which it appears may thus be made "udthout 
regard to time, whilst the orders of the day are under consideration, 
must of course be such as by the rules of proceeding admit of 
being proposed by way of amendment to some one of the legiti- 
mate questions arising in the orders of the day.^ 

1 Hans. (1), XXXn. 803. s HatseU, H. 183, 184, 185; Hans. (1), XXI 

' Hatsell, n. 183, 184, 185; Hans. (1), XXI. 124, 125. 
124, 125. 



Chap. L] making of motion". 491 

1209. This rule admits of the same exceptions, as the usage 
requiring notices, namely, that questions of privilege, such, for 
example, as motions for wTits to fill vacancies, — unopposed 
motions, and matters suddenly arising^ may be brought forward 
after the hour limited. 

1210. Whether any, and what notices of motion, may or must 
be given in a legislative assembly, will depend of course for the 
most part, on its peculiar character, and on the nature and extent 
of its business, and will be provided for, and regulated by its rules 
and orders. In both branches of congress, ten days' notice is 
required to be given, previous to bringing in a bill or resolution, 
which has been passed in one house and rejected in the other. In 
the lower house of congress, besides the preceding, notices are only 
required to be given of motions for leave to introduce bills. In these 
cases one day's notice, at least, is required to be given, either in the 
house, or by filing a memorandum thereof with the clerk, and 
having it entered on the journal. In some of the States notices are 
made necessary by constitution, to be given of certain specified 
motions. It is quite common, also, to provide by rule, in our 
legislative assemblies, that certain motions, when first made, shall 
lie, for a specified length of time, before they are considered. This 
is a sort of notice of motion. 



Section III. Making and Withdrawal of Motions. 

1211. When a member has entitled himself to make a motion, 
by giving previous notice of his intention in conformity with the 
usage already explained, and is called on by the speaker at the 
proper time, he is then and not before at liberty to rise and make 
his motion. In other cases, a member desiring to make a motion,^ 
or to address the house, or indeed to make any communication 
whatever to it, — must, in parliamentary phrase, obtain the floor, or 
get possession of the house, for that purpose. 

1212. In order to do this, the member rises in his place, and 
either merely presents himself to the notice of the speaker, or 
addresses him by his title, as " Mr. Speaker ; " the latter thereupon 
points to the member, or calls him by his name ; the member being 
thus recognized by the speaker, and pointed out by him to the house, 
as being entitled to their attention, is then at liberty to proceed and 

1 Hatsoll, n. 183, 184, 185; Hans. (1), XXI. 2 Pari. Reg. (1), II. 34, 35. 
124, 125. 



492 LEGISLATIVE ASSEMBLIES. [PaET VI. 

make his motion. This can only be done, of course, when the 
house is unoccupied, or when the member in apparent possession 
of the floor has no right to occupy it.^ 

1213. A very common case, in which a member is in apparent 
possession of the floor, ^\dthout a corresponding right to occupy it, 
occurs, when a member speaking suffers his allotted time to run 
out without resuming his seat ; in which case any other member, 
having a right to speak upon the question, may interrupt the 
former and take the floor from him.^ Another very common occur- 
rence of this sort takes place, when the business, to which a mem- 
ber spealdng is addressing himself, ceases, by lapse of time, to be 
any longer in order ; or when the hour arrives, which is set apart 
for the consideration of certain other business, which is specially 
assigned for that tirae.^ In all cases of this kind the member 
speaking may be interrupted, and the floor taken from him, by a 
motion to proceed with the business which is then in order ; ^ but 
not to business, which, though in order, is not entitled to prece- 
dence over the first.-5 

1214. "Whenever a member rises up and addresses the chair, 
even though he thereby interrupts another who is speaking in order, 
it is the duty of the presiding officer to recognize such member, and 
to give him the floor, at least to enable him to explain why he 
claims it, and proposes to address the assembly ; for it may be, that 
he has something to communicate, which the assembly has a right 
to hear at once, or has some motion to make, which he has a right 
to make immediately, and in this way only can it be known, whether 
such member has not a right to proceed ; and it is the duty of the 
member in possession of the floor, to yield it, and resume his seat, 
until this question is determined. To interrupt another member, 
while orderly speaking, without good grounds for the interruption, 
is itself a breach of order, as it is of decorum.^ 

1215. In making a motion, the member submits his proposition 
to the assembly directly, and not hypotheticaUy or conditionally, 
for their present consideration and adoption, maldng use of apt 
words for the purpose. The usual form of making a motion is by 
the words, " I move," or by other equivalent terms. In seconding 



1 J. of H. 26th Cong. 1st Sess. 522, 248; Eeg. 3 J. of H. YJU. 503; Same, S2d CoBg. 2d 

of Deb. in. 1098; Same, VIIL Part 2d, 2547; Sess. 155; Cong. Globe, VIII. 426. 
Same, XII. Part 2, 2314; Cong. Globe, HI. < Cong. Globe, XXI. 1833. 
265; Same, Vm. 242; Same, 426; Same, X. ^ j. of H. 31st Cong. 1st Sess. 1336. 
422; Same. XI. 687; Same, XXI. 1243, 1681. « Eeg. of Deb. Vm. Part 3, 3874. 

» Cong. Globe, XX, 485. 



Chap. L] making of motion. 493 

a motion, the member says, " I second " such a motion, or the 
motion of such a member. Other language of the same import is 
equally effectual. But it is not enough merely to announce an 
intention to make or second a motion, without making or second- 
ing it accordingly.^ 

1216. If but a single member rises, he, of course, is called to by 
the speaker, and proceeds with his motion. If two or more rise at 
or about the same time, and present themselves all together to the 
notice of the chair, the member who, in point of fact, was first up, 
is entitled to proceed in preference to the others. The speaker, 
therefore, in such a case, calls upon the member, who, on rising, 
was first observed by him, or who, in his judgment, was first up ; 
but, as it is impossible for the speaker to embrace aU parts of the 
house in his view, at the same moment, it may sometimes be 
obvious to the house, that he has overlooked a member who has 
the best claim to be heard.'-^ When this occurs, it is not unusual 
for members to express their disapprobation of the speaker's decis- 
ion, by calling out the name of the member, who, in their opinion, 
is entitled to be heard ; and, if the general voice of the house ap- 
pears to give him the preference, the member called upon by the 
speaker usually gives way. The speaker may also in such a case 
inquhe of the house, " which member was first up," or " which 
member should be heard," and determine the question by the voices. 
It is competent, likewise, for any member to call in question the 
speaker's decision ; and to move that a particular member be heard ; 
which motion is to be put and decided like any other question. It 
would seem to be the most proper course, however, where the 
speaker's decision is not acquiesced in, to put a question first on the 
name of the member announced by the speaker 5 and, if that ques- 
tion should be decided in the negative, then upon a name or names 
suggested by members.^ 

1217. In this country the legislative assemblies, almost invaria- 
bly, provide by a special rule, as is the case in both houses of con- 
gress, that when two or more members happen to rise at once, the 



1 Hans. XXXin. 55, 70, 71. upon a succeeding one." Bentham's Political 

- " 111 case of doubt which person, out of a Tactics, Works II. 347. 

number, was up first, it is tlie province of the ^ May, 243; Hatsell, II. 105, 106; Hans. (1), 

speaker to decide: that is to say, provision- XVIII. 719. When two or more members 

ally; for ultimately nothing can be decided rise, and are up at the same time, for the pur- 

but by the house. Upon each occasion, the pose of addressing the house in debate, there 

race, if so one may terra it, is renewed; by are other rules, in certain cases, for determin- 

starting up second, on any occasion, a man ing the right of precedence, which will be 

does not acquire the right of being first heard mUiced in their place. 

42 



494: LEGISLATIVE ASSEMBLIES. [PaRT VI> 

speaker or president shall name the member -^"ho is to speak.^ 
The rule of the senate adds, that in aU cases, the member, who 
shall first rise and address the chair, shall speak first. The speaker's 
or president's decision in this respect is not final and conclusive, 
but like every other, may be called in question, and set aside on 
appeal.^ The rule of the senate of the United States, with the 
addition above mentioned, is precisely the same, practically, with 
that stated as the rule of parliament in the preceding paragraph. 

1218. When a member is rightfully in possession of the house, 
he cannot be deprived of it, "without his own consent, unless some 
question of order, or of privilege,^ or incidental to the proceedings, 
should arise ; in which case, his right to proceed may be interrupted 
and suspended, until that question is disposed of. K the member 
in possession of the house should be spealdng, he can only be inter- 
rupted by some other member rising, and, at the same time, stating 
that he rises, to a question of order, or privilege ; '^ and then the 
speaker must give the latter possession of the house.-^ K the mem- 
ber in possession should not happen to be speaking at the time, 
another may obtain possession of the house, by rising and address- 
ing the chau-, in the usual m^anner. A member may also obtain 
apparent possession of the house, when another is so in fact, 
through the inadvertence or inattention of the speaker or other 
members. 

1219. But, in none of these cases, can the member, thus getting 
temporary possession of the house, avail himself of it, to make any 
other motion than as above stated, or one relating to order or privi- 
lege ; and if he attempts to do so, his motion wiR be wholly dis- 
regarded by the speaker, and the member having previous posses- 
sion of the house Vvdll, notwithstanding, be directed to proceed. 
If a motion thus irregularly made should be stated to the house by 
the speaker, and proceeded upon as if it were regular and proper, 
the irregularity will be at once corrected, upon its being suggested, 
as a matter of order, to the speaker ; and the business will then 
be directed to proceed precisely as if the motion had never been 
made.'' 

1220. Thus, where a member had risen to address the house, but, 



1 Cong. Globe, XI. 353, 914. * Cong. Globe, XHT 603. 

2 J. of. H. 19th Cong. 2d Sess. 254; Same, = See also Eeg. of Deb. VHI. Pai-t 3, 3874. 
22d Cong. 2d Sess. 441; Same, 30th Cong. » Pai-1. Deb. VI. 98; Hans. (3), XLV. 956, 
2d Sess. 247; Cong. Globe, X. 372; Same, See also Cong. Globe, XI. 242; Reg. of Deb 
XI. 49; Same, XX. 251. V. 386. 

3 Cong. Globe, VU. 209. 



Chap. L] makinq of motion. 495 

before proceeding with his speech, another member rose and moved 
that the del.-^ite be adjom-ned, the speaker, upon his attention being 
called to the* subje' U aS a matter of order, said that the first was 
upon his i?gs, and. in possession of the house, before the other 
moved the adjournment, and du-ected the former to proceed.^ Two 
members having risen together, one of them was named by the 
speaker; but the other proceeded to move an adjournment of the 
debate, and the question thereon was put to the house ; the fact 
being then stated to the speaker, as a matter of order, he disregarded 
the motion to adjourn, and directed the member whom he had first 
named to proceed.^ A member speaking to order, another rose to 
order, but moved an adjournment ; the irregularity being noticed, 
the latter gave way, and the former proceeded, no notice being 
taken of the motion to adjourn.^ 

1221. The same rule, it would seem, ought to apply, where, 
whilst one member is addressing the house, another is allowed by 
the courtesy of the member speaking to interrupt him so far as to 
make an explanation ; the latter ought not to be permitted to take 
that opportunity to make a motion. But, if the explanation is 
deferred, as it regularly should be, until the member speaking has 
concluded his speech, there seems to be no reason why the member 
explaining should not at the same time make any motion which 
he might regularly make in the course of the debate. 

1222. If the member, however, in possession of the house, is not 
himself entitled to keep possession, as where he rises and asks a 
question of another member, for the purpose of predicating a mo- 
tion upon the answer, and the member interrogated, standing up to 
answer, takes the opportunity to make a motion, the motion ap- 
pears to be regularly, though, it may be, under the circumstances, 
unfairly made.^ 

1223. According to the form of proceeding, when it was the cus- 
tom for the speaker to frame a question from the debate, a motion 
made by any member in the house of commons could not be put 
to the question, until it had been " debated, or, at least, seconded 
and prosecuted by one or more persons standing up in their places ; " 
and then the same might be put to the question, if the question 
were called for by the house, or their general sense known, on 
demand or inquiry by the speaker.^ Agreeably to the practice as 

1 Hans. (3), IV. 789, 790. * Pari. Deb. VI. 98. 

« Hans. (3), XXXV. 359. 6 Scobell, 21. 

8 Hans. (3), XLV. 956. 



496 LEGISLATIVE ASSEMBLIES. [PaKT VL 

now established, it is only necessary that a motion made by one 
member should be seconded by another in order to entitle it to be 
put to the question. 

1224. The seconding of a motion seems to be requned, on the 
ground, that the time of the house ought not to be taken up by a 
question, which, for any thing that would otherwise appear, has no 
one in its favor but the mover. Whatever the reason of the rule 
may be, however, it does not appear to extend to the house of 
lords ; in which it is competent for any lord to submit a question 
for the decision of their lordships without a seconder ; ^ nor is it 
observed in practice, when the house of commons is in committee 
of the whole.2 There are some exceptions, also, to the rule, which 
win be adverted to hereafter. 

1225. The form of seconding is similar to that of making a mo- 
tion. The seconder rises, and addresses or offers himself to the 
notice of the chair, and, being named or pointed to by him, and thus 
put in possession of the house, declares simply that he seconds the 
motion of such a member. In general, if a motion is not seconded, 
the speaker takes no notice of it whatever, and the business of the 
house proceeds, as if it had never been made.^ 

1226. K no one rises immediately and seconds the motion, it is 
customary for the speaker to inquire, " who seconds the motion," 
or " whether the motion is seconded ; " and, if there is no response, 
he declares the motion not seconded, and takes no further notice 
of it.4 

1227. If, when a motion is made, a member rises, and instead of 
seconding the motion, makes a new one, which is immediately sec- 
onded, the first motion falls for want of a seconder, and the other 
is regularly before the house ; ^ but, if after the second motion is 
made, the first is seconded, the former falls for want of being sec- 
onded, and the motion first made is regularly before the house. 

1228. If several members rise, at or about the same time, for 
the purpose of seconding a motion, the right of one of them to pro- 
ceed in preference to the others must be determined in the manner 
already stated, where several members rise at the same time for the 
purpose of making a motion. But, if one member rises to second 
the motion, and another to make a different motion, it would seem 
to be most in conformity with the modern practice, for the speakei 

1 May, 216. 4 Hatsell, IL 120, n.; Pari. Reg. (1), X. 65; 

a May, 288. Hans. (3), IL 547. 

3 Scobell, 21; Hatsell, IL 120, n.; Pari. Reg. » Comm. Deb. VIL 309. 
(2), X. 6D. 



Chap. L] seconding of motion. 497 

to give the preference to the former, on the ground, that as the mo- 
tion, unless seconded, falls to the ground of itself, it neither requires 
any other motion to be made in order to defeat it, nor can it stand 
in the way of any independent motion of a different character. It 
is competent for the house, however, to determine the question of 
priority in favor of the latter, and thus indirectly defeat the motion 
for the time being. 

1229. As no subject can regularly be discussed, but upon a 
motion made and seconded, motions are sometimes made as well 
as seconded, for the purpose of giving the mover or seconder a 
right to address the house in reference to a particular matter, or of 
obtaining the decision of the house upon it in the negative of the 
motion ; and, therefore, neither the mover nor seconder is under any 
obligation to vote for the motion which they bring before the house.^ 

1230. The rule, requiring motions to be seconded, admits of an 
exception in those cases, where the purpose of the motion is to 
carry into effect the orders or resolutions of the house ; as, for ex- 
ample, where the house has ordered that a bill shall be read a sec- 
ond or third time on a given day, a motion on that day, that the 
bill be now read accordingly, need not be seconded.^ In those 
cases also, where a motion is made for the purpose of carrying out 
one of the standing orders, as, for example, the order for the exclu- 
sion of strangers, the proceeding is not so much a motion, as a 
suggestion or taking notice of the fact that a breach of the order 
exists, and neither requires to be seconded nor even put to the 
question. In all cases of this description, where it is manifest that 
a breach of the standing orders "exists, it is the right of every mem- 
ber to have them enforced without delay or debate.'^ 

1231. When a motion is regularly made and seconded, or when 
it is made only, where seconding is not required, it is then the duty 
of the speaker to propose it as a question for the determination of 
the house ; unless the motion is objectionable, either in point of 
substance or form, or in reference to the time when it is made. K 
a motion is objectionable in any of these respects, the irregularity 
may be pointed out by the speaker, or taken notice of by him of 
his own motion ; and, in either case, being stated by the speaker to 
the mover and the house, the mover may then withdraw his mo- 
tion, or modify it and present it in an unobjectionable form. 

iHans. (1), Vn. 188; Same, XXV. 1138, = May, 353; Hatsell, II. 120, note. 
1140. But though a member may vote, he is ^ HatseU, II. 120. 
not with us allowed to speak against his own 
motion. Cong. Globe, XXI. 1094, 1095. 

42* 



498 LEGISLATIVE ASSEMBLIES. [PaRT VI. 

1232. If the mover, however, insists upon his motion as it is, it 
must be stated to the house by the speaker. It then belongs to 
the determination of the house, both as to the point of regularity 
and as to the subject-matter ; though it is nevertheless competent 
for the speaker or any other member to take the sense of the house 
upon the preliminary question of regularity. In the former case, 
the question of the regularity of the motion is involved in the mo- 
tion itself, and decided at the same time ; in the latter, the t^vo 
questions are separately presented. The iiTCguIarity of a motion 
may be pointed out as well after it has been stated to ihe house by 
the speaker as before ; but in this case, it is no longer within the 
power of the mover to withdraw^ or modify it, but it must be deter- 
mined by the house in the manner already described. 

1233. When a motion has been made merely, but not yet pro- 
posed or stated by the speaker, the mover may withdraw, or modify 
it at his pleasure. This, consequently, is the time at which objec- 
tions to motions, especially in point of form, are usually made, 
either by the speaker, or by other members ; upon Avhich the mover 
may either explain and insist upon his motion, as it stands, or he 
may \sn.thdraw it altogether; or, adopting the suggestions for 
amendment, may modify it at his pleasure ; and this power of the 
mover may be exercised, as it seems, without reference to his sec- 
onder, if the motion has been seconded ; though, of com'se, the 
seconder may withdraw his second, if he does not approve of the 
motion as amended ; or, entirely independent of the mover, if he 
changes his mind before the motion is stated by the speaker. 

1234. If a motion is unobjectionable, or not objected to, on any 
of the grounds above mentioned; or, having been objected to for 
some irregularity in point of form, has been put into the proper 
form by the mover ; it then becomes the duty of the speaker to 
propose it to the house for its determination. In general, a motion 
is to be stated in the words in which it is moved,i or in which the 
house has agreed that it shall be stated ; but, where the mover has 
evidently misapprehended the terms in which his motion ought to 
be framed, in order to accomplish the object which he has in view, 
it is the duty of the speaker to state it in the appropriate form. 
Thus, where a motion was made, that a resolution which had been 
debated and rejected by a great majority, should not be entered on 
the minutes, the speaker proposed the question to the house, " that 
the proceedings should be expunged," for the reason, that as the 

» Pari. Reg. XXXIX. 218. 



Chap. L] withdrawal of motions. 499 

minutes of the proceedings were going on during the debate, and 
the resolution was therefore already entered, the only mode of ac- 
complishing the object contemplated by the motion would be to 
expunge the entiy of the resolution.^ In another case, two mem- 
bers having risen to address the house, and one of them being 
called upon by the speaker, a motion was made in this form, that 
the member called upon by the speaker, " not being first up, do now 
speak ; " but the speaker stated the question thus, that the other 
member, " being first up, do now speak." ^ 

1235. When a motion lias been stated by the speaker to the 
house, and proposed as a question for its determination, it is then 
in the possession of the house, to be decided or otherwise disposed 
of according to the established forms of proceeding, and is no 
longer in the power of the mover to withdraw or modify without 
the consent of the house. But with the leave of the house, a mo- 
tion may be withdrawn, either by the mover, or at the suggestion 
of any member at any time before the question is fully put upon it, 
even if the debate has been adjourned.'^ 

1236. In order that a motion may be withdrawn after being 
stated, the unanimous consent of the house must be given, upon a 
request or motion made for that purpose by the mover or some 
other member; though, as has already been seen, until a motion 
has been stated, it is entirely within the control of the mover to 
withdraw or modify at his pleasure. 

1237. The usual form of proceeding in the withdrawal of a 
motion is for the mover, either of his own accord, or upon the sug- 
gestion of the speaker or some other member, to express a wish to 
withdraw his motion ; if the seconder gives his consent,* the speaker 
then puts the question, that the motion be withdrawn ; and if there 
is no dissenting voice, the motion is withdrawn accordingly. If 
any one member dissents, the motion cannot be withdrawn, but 
must be decided by the house.'^ It is not usual to put the question 
for withdrawing until the mover and seconder have given their 
consent, provided they are present to do so ; but if they happen to 
be absent from the house at the time, so that their consent cannot 
be obtained, the question may nevertheless be put, and the motion 
withdrawn by the consent of the house.^ 

1238. If any other motion, as, for example, the previous ques- 

1 Hans. (3), XVn. 1281, 1324. < Hans. (3), V. 1220. 

« Cav. Deb. II. 386. 6 Parl. Reg. LXHI. 282. 

3 Pari. Reg. XXII. 631, 632; Hans. (1), • Pari. Reg. LXIX. 189, 190. 
XXXVII. 1072, 1079. 



500 LEGISLATIVE ASSEMBLIES. [PaRT VL 

tion,^ or an amendment,^ is pending at the time in reference to a 
motion which the mover desires to withdraw, the consent of the 
mover and seconder of such second motion must also be obtained, 
before the question can be put for withdra"v^T-ng the first. In this 
case, the question is put, in fact, upon withdrawing both motions 
at the same time, and will of course be negatived by the dissent of 
any one member, who wishes to decide the first motion either by 
itself, or by means of or connected with the second motion ; but, 
though the first motion cannot be \\dthdrawn without the second, 
the latter may be withdrawn, like any other motion. 

1239. After a motion has been proposed by the speaker, and 
thus put into the possession of the house, the mover and seconder 
have no more control over it than any other member; nor is their 
presence in the house, any more necessary for considering or dis- 
posing of it, than the presence of other members ; and, therefore, 
when a motion has been regularly stated, the fact of its having been 
moved cannot be called in question, merely because the mover is 
not present, at the moment, and cannot avow the motion to be 
his.3 

1240. When a motion has been proposed by the speaker, it is no 
longer in the power of the mover to modify it, at his pleasure, as 
he may do before it has been stated ; it can then only be altered by 
being amended, on motion and vote, in the usual manner ; ^ unless 
the house give the mover leave to withdraw his motion, for the 
purpose of ofiering it in a different form ; ° or it is presumed, unless 
he should be allowed to modify it by general consent. 

1241. It is deemed so essential in the legislative assembhes of 
this country, that the mover of a motion should possess the right 
of withdrawing it at pleasure, that it is generally provided by a 
rule, that a motion after it is in possession of the house may be 
withdi-awn by the mover at any time before a decision or amend- 
ment.'^ The mover may modify his motion either at his own sug- 
gestion, or by adopting a modification or amendment suggested 
by another. The right to modify is a consequence of the right to 
withdraw and may be exercised whenever the latter is aUowable,*^ 
except when the previous question has been moved, in which case, 



1 Hans. (1), XXXIV. 139. « This is the rule of the honse of repre- 

s Hans. (2), XI. 913, 915, 918. sentatives of the United States. The rule ot 

3 Pari. Eeg. XXIV. 76, 77; Same, XXV. the senate provides that a motion may be 

158, 159, 160. withdrawn at any time hefore a decision, 

* Pari. Pieg. X\TI. 107. amendment, or ordering of the yeas and nays. 

5 Pari. Eeg. XXV. 303, 313, 327, 328. ' J. of H. 30th Cong. 1st Sess. 196. 



Chap. L] withdrawal of motions. 501 

the mover of the proposition to which the previous question applies, 
may withdraw his motion altogether, but is not at liberty to modify 
it.i All cases, not coming within the rule of the particular assem- 
bly, as to the withdrawal of motions, either in regard to times or 
subjects, are governed by the rules above stated. 

1242. In regard to petitions, memorials, and papers of that de- 
scription, all motions relating to them stand, in this respect, upon the 
footing of other motions. Bills and reports and similar papers so 
long as they remain in the form of motions, are subject to the like 
rules. When, however, papers of this and the former description 
have been received by the house they can only be withdrawn with 
its consent obtained and evidenced in the usual manner.^ 

1243. Where a motion is withdrawn, either before it is proposed 
as a question, or at the suggestion of the mover, or by the leave of 
the assembly, it may be moved again.^ 

1244. When the paper, on which a motion is founded, has been 
received from the other branch, or is reported by a committee, or 
has passed into the possession of the assembly, it cannot be modi- 
fied ; inasmuch as there is no person in existence, as a member of 
the assembly, who has authority to suggest or accede to a modi- 
fication.* 

1245. The mover of a proposition may modify it so as essentially 
to change its character ; in which case, all motions, predicated upon 
it as it stood originally may fall, and it will be no longer objection- 
able on the ground, that the judgment of the assembly has been 
already expressed upon it.^ A modification is not allowable, where 
the effect of it would be to introduce a new instrument, as, for 
instance, a bill or joint resolution, contrary to the rules of the 
assembly.^ 

1246. If the mover withdraws his motion, upon a compact with 
some other member to renew it, the presiding officer cannot recog- 
nize or enforce any such compact ; but v/ill leave it entirely to tlje 
honor and opportunity of the member with whom the compact is 
made.'^ 

1247. Under the rules applicable to this subject, the seconder of 
a motion may, it seems, withdraw his second.^ 

1 J. of H. 26th Cong. Ist Sess. 1288; Same, * Cong. Globe, XXI. 835; Same, XXUI. 
27th Cong. 1st Sess. 813; Same, 31st Cong. 129. 

1st Sess. 1395; Cong. Globe, XI. 471. » Cong. Globe, XVIII. 179, 180. 

2 See post, § 2339. » J. of H. 32d Cong. 1st Sess. 679. 

8 Cong. Globe, XVH. 273; May, K. 0. &c., ' Cong. Globe, VHI. 173, 174; Same, XI 
131. 687, 916; Same, XVIII. 48. 

8 Lloyd's Deb. II. 5. 



502 LEGISLATIVE ASSEMBLIES. [PaET ^^X. 

1248. When the mover of a proposition has a right to withdraw 
it, at his pleasure, he may do so at any time when he can obtain 
the floor for the pm-pose, whether a quorum is present or not ; but 
when a motion is necessary for the purpose, this can only be made 
and acted upon, when a quorum is present. 

1249. After a motion has been proposed, it is regularly to remain 
upon the table before the speaker ; ' and, whilst under consideration, 
it is the right of every member, as often as he may desire, to look 
at it, or requu'e it to be read, for information.^ But no member 
has a right to inspect it as it lies on the table. 



CHAPTER SECOND. 

OF MOTIONS CONSIDEEED WITH KEFEEENCE TO THEIR 
SUBSTANCE. 

1250. It being the right of every member to propose any motion 
he may think proper, for the consideration of the house,^ unless 
restrained by some express prohibition, or by considerations of 
public policy, or by the necessity of regularity and order in the pro- 
ceedings, the subject of this chapter will be most conveniently 
treated in the negative form by showing what motions are objec- 
tionable. 

1251. I. Motions in contravention of a statute are objectionable 
on that ground ; although, as it is in the power of the two houses, 
to repeal the act, each of them may institute proceedings for that 
purpose ; yet, wliilst an act remains unrepealed, it is binding on the 
members collectively as well as individually. Thus, a motion 
made in the house of commons, contravening any of the provisions 
of the several acts regulating the trial of controverted elections, 
would be irregular. For a similar reason, in this country a motion 
is objectionable, which is in contravention of a constitutional pro- 
vision, or of an act of the legislature made in conformity there- 
with. 

1252. II. A motion, which is in contravention of any of the 
standing orders, is irregular,^ for the reason, that it violates the laws 

1 Romilly, 274; Hatsell, IL 112. » Pari. Reg. XL 147, 485. 

2 Hans. (S), LXIU. 1446. 



Chap. II.] motions as to their substance. 503 

which the assembly has imposed on itself for its own government, 
and for the regulation of its proceedings ; and although it can, if it 
sees fit, repeal any of its orders, yet, whilst an order is in force, it 
cannot be disregarded ; and, therefore, no member is at liberty to 
make a motion repugnant to a standing order of the house. 

1253. III. A motion, which contravenes a particular or special 
order of the house, is also objectionable for the same reason; 
all hough the orders of the house may be rescinded or dischargedj 
at the pleasure of the house at any time. Thus, if the house order 
that a bill be read a second time on a particular day, a motion on 
some other day that it be then read a second time would be irregu- 
lar, as contravening the order of the house for the second reading; 
but the house might, nevertheless, discharge or rescind the order for 
the second reading. 

1254. IV. It is a rule, introduced in order to avoid contradictory 
decisions, to prevent surprises, and to afford opportunity for deter- 
mining questions as they arise, that no motion shall be made or 
question proposed, which is substantially the same with one on 
which the judgment of the house has already been expressed dm-ing 
the session,^ or which is still pending in the house or before a com- 
mittee. 

1255. If the motion proposed is the same in substance with that 
already determined, no mere alteration of the language will be 
sufficient to evade this rule. Thus, where a motion was made for 
a bill to relieve dissenters from the payment of church-rates, the 
form and words of which were different from those of a previous mo- 
tion, but the object of which was the same in substance, and the 
speaker called the attention of the house to the point of order, the 
house agreed that the motion was irregular, and ought not to be 
proposed.- But when a motion for leave to bring in a bill has been 
rejected, although a second motion of the same substance cannot be 
entertained, it is competent to move fo^ a committee of the whole, 
or a select committee, to consider of the laws to which the rejected 
bill refeiTed ; and this is an expedient often resorted to.'^ The rule 
may be evaded by framing the new motion, with such differences 
as to form and matter, as to be beyond the restriction, whUe the 
purpose in view is susceptible of being effected under it. But the 
rule cannot be evaded by renewing, in the form of an amendment, 
a motion which has akeady been disposed of.* 

» May, 233. s May, 234, 

* Miiy, 234: Comm. Jour. XCV. 495. ■» Haus. (3), LXXVI. 1021; May, 234. 



504 LEGISLATIVE ASSEMBLIES. [PaET VL 

1256. The same rule applies, where the motion is inconsistent 
and interferes with a vote aheady passed ; as, where the house 
having voted the cavahy for three months, and a motion was made 
for an address to the king, entreating him to consider of the benefits 
that would result from reducing the number of the cavalry now 
maintained, jMr. Speaker Addington suggested, that the motion 
was improper as interfering with the previous vote, and the house 
acquiesced in the suggestion.! So where a commitiee has been 
appointed for the consideration of a particular subject, as, for 
instance, a controverted election, a motion cannot be entertained 
by the house, which comprises any thing that may be inquii-ed into 
by the committee.^ 

1257. So, where the purpose of the motion is to call upon the 
house to rejudge what it has aheady judged during the session, the 
motion is irregular ;3 as where a witness having been adjudged 
guilty of prevarication, and committed, and a member having given 
notice of a motion on the subject, and addressing the house in sup- 
port of the motion, vdth which he intended to conclude, contended 
that prevarication could not apply to the evidence given by the 
witness, which he then proceeded to examine, the member was not 
allowed to go on, on the ground, that the purpose of his motion 
being to call upon the house to rejudge a question akeady decided, 
it was irregular.* 

1258. For the same reason, that a question, which has been 
aheady decided, cannot be again proposed, it is irregular to renew 
a motion, which has been decided to be out of order, and therefore 
inadmissible.-^ 

1259. But the rule does not apply to the different stages of a 
bill; the same proposition which has aheady been rejected in a 
prior stage, may be again moved in another. 

1260. But, though a motion is in-egular, which proposes a ques- 
tion akeady decided, it is nevertheless competent for the house to 
rescind a vote. This is allowed, in order that the discretion of par- 
liament may not be too strictly confined, and its votes subject to 

1 Pari. Reg. L VIII. 326. turn of the debate ; and it is probable, that in 

2 Hans. (2), XVI. 1186. the proceeding referred to, the house pennit- 
5 An instance is recorded in the Commons ted the order to be spoken against, that the 

Journal, in the 19th Charles II. of leave being debate might be followed by a question to 
given to speak against an order of the day rescind or discharge the order. In modem 
previous, which was followed by a discharge times, the same object would be reached by 
of the order in question, and the making of a a direct motion to rescind in the first in- 
new one on the same subject. Coram. Jour. stance. 
IX. 20. At this time, it was customary for * Hans. (1), XIV. 113. 
the speaker to frame the question from the ^ Pari. Reg. LVIII. 326. 



Chap. IL] motions as to their substance. 505 

irrevocable error. In point of form, the rescinding of a vote is the 
matter of a nev^ question ; the form being to read the resolution of 
the house, and then to move that it be rescinded ; and, thus the 
same question, which has been already resolved, is not again 
offered, although its effect is annulled.^ 

1261. When the resolution or vote stands in the form of an 
affirmative proposition, a motion to rescind it may be framed with- 
out difficulty ; but, where it is in the negative, it may be difficult, 
in some cases, to frame a question for the purpose, without pre- 
senting the same question a second time. In such a case, the only 
mode by which a negative vote can be revoked, is by proposing 
another question similar in its general purport to that which has 
been rejected, but with sufficient variance to constitute a new ques- 
tion ; leaving it to the house to determine whether it is or not 
the same quebtion.- 

1262. It seems to be immaterial, whether the motion, upon 
which the decision of the house has already taken place, is the 
same which is newly moved, or only an equivalent motion.'^ 

1263. No order can be made in reference to a subject, which is 
not regularly before the assembly ; * and, therefore, where a member 
read a series of resolutions, and then moved that they should be 
printed, Mr. Speaker Addington said, that, as the resolutions had 
not been regularly moved, no order could take place with respect 
to them;^ 

1264. The inconvenience, sometimes resulting from the practical 
application of the rule above stated, has led to the introduction into 
the |jarliamentary practice of this country of the motion for recon- 
sideration ; ^ ys^hich^ while it recognizes and upholds the rule in its 
ancient strictness, yet allows a deliberative assembly, for sufficient 
reasons, to relieve itself from the embarrassment, which might 
attend the strict enforcement of the rule in a particular case ; so that 

1 Mtiy, 233. ceedings of the house of commons Is con- 

* M:iy, 234. tained in the ninth volume of the journals of 
3 Halsell, II. 116. As to equivalent ques- that body, and inserted in the note to para- 

tions, see post, § 1830. graph 1257. Neither does it depend for its 

* J. of H. 17th Cong. 1st Sess. 290 ; Reg. of existence on the rules and orders of any as- 
Deb. in. 1142; Cong. Globe, HI. 261; Same, sembly in which it prevails, though it is com- 
Vni. ICl ; Same, XVIH. 799, 867 ; Same, monly regulated by them. It appears to have 
XXI. 1431. been in frequent use in the congress of the 

s Pari. Reg. XLIV. 108, 113. confederation, though it is not mentioned in 

* This motion, though parliamentary in its the rules and orders of that body; and it was 
character, \s entirely American in its origin, in common use in the house of representatives 
and one of the few motions known only in of the United States before any rules on that 
our legislative assemblies. The nearest ap- subject were adopted 

pxoximation to it that I can find in the pro- 

43 



506 LEGISLATIVE ASSEMBLIES. [PaET VL 

it has now come to be a common practice in all our legislative and 
other deliberative assemblies, and may consequently be regarded as 
a principle of the common parliamentary law of this country, to 
reconsider a vote already passed, whether affirmatively or nega- 
tively. 

1265. For this purpose a motion is made and seconded, in the 
usual manner, that such a vote be reconsidered, that is, that the 
subject of it be again considered by the assembly; and if this 
motion prevails, the effect of the vote in question is abrogated, and 
the matter stands before the assembly in precisely the same state 
and condition, and upon the same question, as if the vote, which 
has been ordered to be reconsidered, had never been passed. Thus, 
if an amendment by inserting words is moved and rejected, the 
same amendment cannot be moved again, but the assembly may, 
on motion, reconsider the vote by which it was rejected, and then 
the question recm's on the amendment, precisely as if the vote had 
never been taken upon it. 

1266. It is usual in our legislative bodies, and in other deliber- 
ative assemblies of a permanent character, to regulate by a special 
rule the time, manner, and by whom, a motion to reconsider may be 
made ; as, for example, that it shall be made only on the same or a 
succeeding day, or within a given number of days ; by a member 
who voted with the majority; or at a time when there are as 
many members present as there were when the vote ^vas passed ; 
but, where there is no special rule on the subject, a motion to re- 
consider may be made at any time, or by any member, precisely 
like any other motion, and subject to no other rules. 

1267. If the time is fixed in which a motion to reconsider must 
be made, and it is made accordingly, but the consideration of it is 
postponed to a subsequent day, at which time it is withdrawn by 
the mover, it is then too late to renew the motion.^ The same re- 
sult follows if, when a vote has been taken and declared in the 
affirmative or negative, it is afterwards ascertained upon a recount 
or otherwise, that the vote was incorrectly declared, and in fact 
passed the other way.^ 

1268. It is commonly provided also by the rule relating to this 
subject, that the motion to reconsider shall only be made by one 
who voted with the majority on the question to be reconsidered. 
If a member's right to make the motion is questioned on this 



1 J. of H. 2rth Cong. 2d Sess. 1118, 1122; 2 Cong. Globe, XXIH. 296; J, of H. 30th 
Cong. Globe, XV. 856. Cong. 1st Sess. 1080. 



Chap. IL] motions as to their substance. 507 

ground, the fact is to be ascertained by an inquiry of the member 
himself how he voted ; and if before the motion has been decided, 
it is discovered that the mover had no right to make it, even 
though the time for such a motion has elapsed, all the proceedings 
with reference to it will be null. When no division of the house 
takes place, all the members present ^ are deemed to have voted 
with the majority, and may accordingly move a reconsideration.^ 

1269. The term majority means the prevailing party ; and there- 
fore when a question is lost by a tie vote, those who vote in the 
negative are alone entitled to move a reconsideration.-^ 

1270. The motion to reconsider, though relating to the same 
subject akeady considered, is, in a parliamentary sense, a new one, 
distinct both from a motion to rescind the former vote, and from 
the subject of it. 

1271. The first effect of this principle is, that the motion to re- 
consider is to be decided by the voiCs of a majority in the ordinary 
manner, though a different rule, requiring more or permitting less 
than a majority, is established for the decision of the question which 
it is proposed to reconsider.* 

1272. The second effect of this principle is that the motion to 
reconsider is debatable, although the question which it is proposed 
to reconsider is not;^ In the debate on the motion to reconsider, 
the merits of the principal question are usually brought forward 
and discussed, though it is plain that they are not involved, and 
that the question is whether the principal subject shall be again 
considered. 

1273. The third effect of this principle is, that when one mo- 
tion to reconsider has been made and decided, either in the affirm- 
ative or negative, or is still pending,^ no other motion to reconsider 



1 J. of H. 29tli Cong. 1st Sesj. 1049, 1050; United States, that such a motion could not 
Reg. of Deb. XV. Part 2, 1515 ; Cong. Globe, be debated, etc. Cong. Globe, VI. 145 ; Same, 
XVni. 400. XX. 463; Same, XXI. 831. 

2 Reg. of Deb. XI. Part 2, 1393; Cong. « J. of H. 27th Cong. 1st Sess. 618, 619, 620; 
Globe, VIII. 359; Same, XI. 242, 452. Sa«ie, 31st Cong. 1st Sess. 1397. It is an ex- 

* J. of H. 26th Cong. 1st Sess. 211 ; Same, pedient often resorted to in the house of rep- 

30th Cong. 1st Sess. 1081. resentatives in the congress of the United 

''J. of S. v. 92; J. of H. 19th Cong. 1st States, when it is desired to put a measin-e 

Sess. 796; Same, 30th Cong. 1st Sess. 405. v/hich has passed out of the reach of danger, 

But see Cong. Globe, XX. 199. for the friends of it to move a reconsidera- 

5 In view of the inconvenience that would tion, and then to pass an order, that that mo- 
be likely to result from allowing debate on a tion lie on the table. The bill or other meas- 
motion to reconsider a qiaest'.on which was ure does not cohere to the motion for recon- 
not debatable, it has been several times de- sideration so as to lie on the table with it, but 
cided in the house of representatives of the passes along through its I'egular stages as if 



508 LEGISLATIVE ASSEMBLIES. [PaET VI. 

the same question is admissible ; but if the question since its first 
reconsideration has been so altered by amendments, as to be no 
longer the same, it may again be reconsidered.^ 

1274. The fourth effect of this principle is, that though a mo- 
tion for reconsideration may be made and discussed in the absence 
of the paper to which it relates ; ^ yet if decided in the affirma- 
tive, it will be wholly ineffectual and inoperative until the paper in 
question is in possession of the house. The first step, therefore, 
after a vote to reconsider is to send to the other branch, or to the 
executive, for the paper in reference to which the vote to reconsider 
passes, or otherudse to bring it before the house. Possession of 
the paper may also be obtained before the motion to reconsider is 
made. In either case, the motion for the paper is incidental to the 
motion to reconsider.^ 

1275. It is a general principle with regard to reconsideration, 
that at a subsequent stage there can be no reconsideration of a 
preceding vote in relation to the same subject, without first voting 
to reconsider such subsequent vote ; ^ thus, after a bill has been 
read a third time and passed, it is then too late for a motion to re- 
consider the vote ordering it to a second reading, or rejecting an 
amendment proposed at that stage, unless the second reading of 
the bill is first reached by reconsidering the preceding votes. 

1276. It is a general principle, also, with regard to this matter, 
that there can be no reconsideration of an order, the execution of 
which has already commenced, as, for example, the previous ques- 
tion, while the main question is being taken,^ though such order 
may be rescinded or discharged, if the nature thereof will admit of 
such a motion, as to so much of the same as remains unexecuted. 
Nor can a reconsideration take place in a committee ; ^ or in com- 
mittee of the whole ; " or of an order of a preceding legislature.^ 

1277. When a motion to reconsider is decided in the affirmative, 



that motion had not been made. The effect Cong. 1st Sess. 657; J. of S. 30th Cong. 2d 

of this proceeding is, that no second motion to Sess. 137, 173, 291; Cong. Globe, VIII. 424; 

reconsider can be made, and the first cannot Same, XI. 242 ; Same, XII. 244. 

be got at ; it cannot be taken up out of its ^ J. of H. 30th Cong. 1st Sess. 704. 

order in which it is not liliely to be reached ^ J. of H. 31st Cong. 1st Sess. 860, 861 ; Reg. 

during the session, without a vote of two of Deb. I. Part 1,786; Same, III. 28; Cong. 

thirds. Globe, VIII. 231; Same, XXIII. 287. 

1 J. of H. 27th Cong. 2d Sess. 1022 ; Cong. 5 j. of H. 31st Cong. 1st Sess. 101. 
Globe, XIII. 741; Same, XXI. 1372, 1373; J. « Cong. Globe, VIII. 419, 420. 

of H. 31st Cong. 1st Sess. 1397; Cong. Globe, ^ Cong. Globe, IX. 203; Same, X. 59; but 

XXI. 1771. see Same, VI. 423. 

2 J. of H. 26th Cong. 1st Sess. 1033; Same, » Eeg. of Deb. IV. Part 2, 2766. 
27th Cong. 1st Sess. 1125, 1131; Same, 29th 



Chap. III.] motions as to their form. 509 

the question or business to which it is attached, immediately takes 
the place to which it belongs in the general order of business in the 
assembly/ or goes over to the next day on which business of the 
same description is in order.^ 

1278. When a motion to reconsider prevails, it has a twofold 
effect ; first, it entirely abrogates the vote passed on the question, 
which is thereby ordered to be reconsidered ; ^ and, secondly, it 
again brings forward that question, to be discussed and decided in 
the same manner it was originally, for the consideration and de- 
termination of the assembly ."^ 



CHAPTER THIRD. 

OF MOTIONS CONSIDERED WITH REFERENCE TO THEIR FORM, 

1279. A motion is a proposition made to the house by a mem- 
ber, which if adopted becomes the resolution, vote, or order, of the 
house. The form of a motion must consequently be so framed, 
and its language so expressed, that, if it meets the approbation of 
the house, it may at once become the resolution, vote, or order 
which it purports to be. In considering motions in reference to 
their form, it will be most convenient to treat of the subject affirm- 
atively, by pointing out the several requisites as to form, which a 
motion ought regularly to possess. 

1280. I. Motions are usually expressed in the affirmative, even 
where their purpose and effect are negative, although there is no 
strict rule which prohibits them from being put in the negative form. 
Thus, for example, the form of the previous question is, that the 
main question be noiv put, which is an affirmative proposition, though 
in parliament, the purpose of the mover is to obtain a decision of 
it in the negative, and the motion is said to be carried, when, in 
point of form, it has been rejected. So, where the purpose of a 
motion is the rejection of words from another motion or question, 
the parHamentary form in which it is proposed to the house is, that 

» Cong. Globe, XX. 463. s Withington v. Harvard, Cushing's Reports, 

« J. of H. 27tli Cong. 1st Sess. 618, 619, 620. VIII. 66. 

« Cong. Globe, VIII. 410; Same, XXI. 832. 

43* 



510 LEGISLATIVE ASSEMBLIES. [PaRT VL 

those words stand part of the question, which is an affirmative 
proposition. 

1281. But though motions are not usually expressed in the nega- 
tive, yet, when expressed affirmatively, and decided by the house in 
the negative, such negati^-e decision is as much the judgment or 
decision of the house, as an affirmative decision would have been,^ 
and so, it is presumed, that if a motion was allowed to be put in 
the negative form, and it should be decided negatively, the decision 
of the house would be considered as affirming the proposition. 

1282. In the house of commons, \^^here, in case of an equality 
of votes, the speaker gives the castmg vote, there seems to be no 
other difference betw^een putting a question negatively and affirma- 
tively, than what results from the greater simpHcity and regularity 
of the latter form. But, in the house of lords, in which the lord 
chancellor gives his vote with the other peers, and has no casting 
vote, and in which, in case of an equahty of voices, the decision of 
the house is in the negative of the proposition submitted to it, a ques- ' 
tion, upon which the house is equally divided, T\nll receive a decision 
the one way or the other, according as it is proposed in the affirma- 
tive or the negative. Thus, if the motion is proposed in the 
affirmative, and the house is equally divided, the decision is in 
the negative ; but if the motion was proposed in the negative, and 
the same members should vote precisely in the same manner, and 
divide equally, the decision would be in the affirmative. In some 
of the American legislative assemblies, questions are frequently 
determined by an equality of voices. 

1283. IL A motion must regularly be in waiting. It is usually 
prepared beforehand, or written on the spot, by the member by 
whom it is proposed. K a member, however, who has occasion to 
make a motion, has not prepared it beforehand, and insists upon his 
privilege, he may dictate the words of his motion to the clerk, and 
have them \STitten dowm by him. But it is not usual for members 
to receive the assistance of the clerk in this manner, unless they are 
laboring under some infirmity, which prevents them from ^\T:ituig 
their motions for themselves.- Li this country it is usual to provide 
by a rule, either that all motions shall be submitted in v^Titing, or 
that they shall be reduced to waiting if demanded by the presiding 
officer or any member of the assembly. The latter is the form of 

1 On the 2d of April, 1604, it was laid do-wri, tixe, cannot be questioned again, but must 

as a rule in the house of commons (Comm. stand as a judgment of the house." 

Jour. I. 162,) " That a question being once ^ RomiUy, 273; Grey, IIL 336, Pari. Reg. 

made, and carried in the affirmative or nega- LXVI. 437; Hans. (1), XXII. 745, 746. 



Chap. III.] motions as to their form. 511 

the rule in both houses of congress.^ It is not usual, however, for 
the speaker to require those motions to be presented in writing, 
which are made for the purpose of disposing of other motions and 
questions, or which are made in the ordinary course of proceeding, 
such, for example, as motions to adjourn the house or the debate, 
for the previous question, or for reading the orders of the day. 

1284. III. Every motion being an independent proposition, or a 
series of propositions relating to the same subject, it is a rule, that 
a member cannot make two or more separate motions at the same 
time.^ It therefore seems irregular and unparliamentary to make 
what is ordinarily the matter of two motions the subject of one ; 
yet this has been allowed in the house of representatives of the 
United States, even in cases in which one of the motions is not 
debatable,^ or where one requires only a majority of votes for its 
determination, and the other a vote of two thirds,* and two ques- 
tions must accordingly be taken on the proposition. In that body, 
also, nothing is more common than for the motion to reconsider, 
accompanied by a motion that that motion lie on the table, to be 
submitted at the same time. Another more unparliamentary pro- 
ceeding, which is allowed in that assembly, is, for a proposition and 
the previous question upon it, to be both moved at the same 
time.5 

1285. Where a member proposes a series of propositions relating 
to the same subject, that is to say, a string of resolutions, he first 
reads, and, if necessary, explains the whole series, and then moves 
the first. In this mode of proceeding, the first resolution tests the 
sense of the house ; if adopted, the others follow as a matter of 
course ; if rejected, there is no occasion to move them at all.^ 

1286. In general, it is true, that inconsistent propositions cannot 
be blended together for any serious purpose, and a motion would 
be objectionable in point of form, which should attempt to do 
so ; yet the practice of coupling two heterogeneous propositions 
together, by means of an amendment, for the purpose of fixing 

1 This i-ule is complied with if a printed mo- tained by the house on the grounds ol" con- 
tioii, or one partly in print is submitted. See venience and precedent. J of H. 25th Cong. 
Reg. of Deb. VI. Part 2, 1421. 2d Sess. 1303; Same, 26th Cong. 1st Sess. 

2 Hans. (3), XX. 436; J. of H. 26th Cong. 1033; Same, 27th Cong. 1st Sess. 558; Same, 
2d Sess. 483; Cong. Globe, XVIII. 1007. 30th Cong. 1st Sess. 326; Cong. Globe, VI. 

3 Cong. Globe, XV. 124,125; Same, XVIII. 505; Same, VIII. 282, 283, 432^ 436; Same, 
35. 494; Same, X. 154; Same, XI. 33; Same, 

*Cong. Globe, XV. 124, 125; Same, 407, XII. 123; Same, XIII. 324, 368; Same, XV. 

408; Same, 1164, 1165: Same, XVIII. 35. 84, 192, 237, 238; Same, XVIII. 179, 180 

6 The propriety of this proceeding has often « Hans. (3), XX. 436 ; Romilly, 277. 
been called in question, but has :een sus- 



512 LEGISLATIVE ASSEMBLIES. [PaET VL 

absurdity on the whole, is often permitted to take place as a method 
of taking the sense of the house on a particular question.^ 

1287. IV. A motion should not be so long and so minute in 
what it requires, as to render its adoption contrary to the usual cus- 
tom of the house ; - nor should it be argumentative and more in 
the style of a speech than of a motion ; ^ nor should it coniain any 
unnecessary provisions,^ or objectionable words,^ or be itself unnec- 
essary ; ^ nor be moved for the purpose merely of throwing ridicule 
or contempt upon some other motion." So a motion is objection- 
able, which proposes something to be done, contrary to the orders 
of the house, as where a motion was made to bring up a petition 
praying for pubKc money, which had not been recommended by 
the sovereign ; - or where a motion was made to bring up a petition, 
which had erasures on it not made with the knowledge of the 
petitioners.^ 

1288. If the language of a motion is offensive either to the 
house, or to any member, the same proceedings may be had in- 
relation to it, as are proper in the case of disorderly or offensive 
words used in debate ; ^^ and, for the same cause, a motion may 
either be refused an entry among the minutes, or if already entered, 
may be expunged.^^ 

1289. In all these cases, the speaker calls the attention of the 
mover and of the house to the irregularity of the motion before 
stating it ; whereupon the motion is usually ^Adthdrawn or so modi- 
fied as to be no longer objectionable. But if the motion is of 
such a nature, that the objection cannot be removed, as in the 
tw^'o last-mentioned cases in paragraph 1233, the speaker refuses 
to receive or put the motion to the house, but treats it as a 
nullity. 

1290. If a motion is not objectionable, in any of these respects, 
or if it is objected to, and the objection is not sustained by the 
house, it is the right of the mover to have his motion proposed in 
the very words, in which it is made ; ^- and Lord Thmlow said 
he should consider any decision false, that was come to upon a 
question, the words of which had been altered from the original 
motion given in by the mover. ^^ 

1 Pari. Eeg. (2), XVIL 199. 8 Parl. Eeg. (2), VIL 261, 262. 

2 Pari. Eeg. LVIII. 194, 195. 9 Hans. (3), V. 1267, 1268. 
» Hans. (3), XVH. 1281, 1324. lo Pari. Eeg. XXXIX. 218. 

4 Hans. (3), XXV. 436. n Hans. (3), XVH. 1281, 1324. 

5 Hans. (1), Vn. 872. 12 Par]. Eeg. XXXIX. 216. 

6 Pari. Eeg. LVHI. 194, 195. i3 Pari. Eeg. XXXIX. 218, 
^ Hans. (3), LIH. 1391, 1392. See also 

Cong. Globe. XIV. 30. 



Chap. IV.] motions as to the time when made. 513 



CHAPTER FOURTH. 

OF MOTIONS CONSIDERED WITH REFERENCE TO THE TIME 
WHEN THEY ARE MADE. 

1291. It being contrary to the course of the house, that any busi- 
ness should be laid aside, until it is determined by a question ; ^ it 
is a rule, that, when a motion has been made, seconded, and pro- 
posed by the presiding officer, no other motion for the introduction 
of any new business can be regularly made, until the former has 
been decided by a question, or otherwise disposed of, according to 
the forms of the assembly ; ^ and, consequently, a motion, which, 
in aU other respects, is perfectly regular, may be objectionable 
if made during the pendency of another motion. This rule is 
applicable to subsidiary or secondary,^ as well as to principal, 
motions. 

1292. This rule is subject to several exceptions : first, in refer- 
ence to all those motions, which, having for their object to dispose 
of a principal motion, such, for example, as a motion to amend, or 
commit, or for the previous question, must necessarily be put and 
decided before the question is taken on the first motion, unless they 
do not have the effect to supersede that motion altogether, in 
which case it is disposed of without their being first put to the 
question. 

1293. A second class of exceptions consists of those motions 
which, though not made use of to dispose of the principal motion, 
arise out of and are incidental to that or other questions connected 
with it ; as, for example, questions relating to order, motions for the 
reading of papers, for leave to withdraw a motion, etc. ; which are 
of com-se to be put and decided before the questions which give 
rise to them. 

1294. To the same class belong also those motions, which are 

1 Scobell, 29. 794; Reg. of Deb. HI. 1099; Same, VIIl. 950; 

« Hans. (1), I. 1002, 1022, 1025; Romilly, Same, X. Parti. 1388; Cons?. Globe. VI. 314, 

275; Scobell, 21, 22; Hatsell, II. 123; Comm. Same, X. 264, 405; Same, XVIH. 93; Same, 

Deb. X. 293; Hans. (1), IV. 186, 190; Same, XX. 492, 493. 

XXIir. 284; Same, (3), LXn. 1068; Pari. Reg. ^ por a defiuition of these motions, see 

XXIV. 76, 77; Same, XXV. 158, 159, 160; post, § 1443. 
J. of H. VII. 234; Same, 19th Cong. 1st Sess. 



514 LEGISLATIVE ASSEMBLIES. [PaRT VI. 

' incidental to the course of business, as motions to adjoui-n, cr to 
adjoiu-n during pleasure, or that a particular member be allowed to 
address the house without rising, or in reference to some matter 
suddenly arising and requiring instant determination. 

1295. A third class of exceptions to the rule above stated con- 
sists of what are called questions of privilege, or those which con- 
cern the rights and privileges of the house itself, or of its individual 
members ; as, for example, when the proceedings are disturbed or 
interrupted, whether by strangers or members within the house, or by 
a mob "^^dthout ; or when a quarrel arises between members ; or when 
the house is informed that one of its members is forcibly detained 
from his attendance. In all cases of this description, the subject 
requires the instant attention of the house, even though a member 
should be speaking, and supersedes all other business until decided 
by a question, or other^^dse disposed of for the time being. 

1296. In regard to the practical operation of the rule, that whilst 
a motion is pending, no other can be made, ■s\4th the exceptions 
above stated, it is to be remarked, that when a new motion is 
declared by the speaker or the house to be irregular, as not coming 
within any of the excepted cases, the motion is not considered as 
made at all ; so that when the pending motion is disposed of, the 
mover of the new one must then present his motion, if he thinks 
proper to proceed with it, in precisely the same manner as if it had 
never been moved ; but, when the new motion comes within the 
exceptions and is thus entitled to precedence, it merely supersedes 
the first, for the time being, which revives and is before the house, 
m the same manner as before, when the second motion has been 
decided, unless it has itself been decided by the decision of the 
other.i 

1297. A motion, which is in order when it is made, may cease 
to be so by the mere lapse of time, as where a particular time is set 
apart, by a rule, for the consideration of business of that descrip- 
tion; in which case the business ia question, with all the pending 



1 The terms in which this rule is expressed, " The question, which is first moved and 

in the works on parliamentary practice, clearly seconded, is to be put first," (Hatsell, IL 111); 

refer to the order of proceeding which was which is perfectly intelligible, if referred to a 

observed, when the members expressed their time, when the members made their several 

several opinions, in reference to any subject motions, and presented them all to the house, 

that was introduced, and the speaker after- before any one was stated by the speaker, 

wards framed or selected the question from But, in modem times, it cannot be said that 

the turn of the debate, or from the suggestions there is a question first moved, because in 

thrown out by the members in the course of point of fact, no other or second is or can be 

their remarks. Hatsell states the rule thus : moved, except as above stated. 



Chap. IV.] motions as to the time when made. 515 

motions connected with it, is suspended by the expiration of the 
time, until the next day on which such business is in order. Thus, 
where Monday of each week was devoted to the consideration of 
resolutions, it was held, that a resolution, introduced on that day, 
and debated until the expiration thereof, at tM^elve o'clock at mid- 
night, ceased to be in order at that time, and then passed from the 
assembly until the next Monday.^ 

1298. But where the time fixed in a motion for the doing of a 
particular act expires whilst the motion is pending, so that the 
doing of the act becomes impossible, as where a resolution provided 
that debate on a certain topic should cease at two o'clock in the 
afternoon on that day, which hour elapsed whilst the resolution was 
pending, it was held that the latter did not thereby become objec- 
tionable in point of order.'^ 

1299. When a motion has been proposed and decided, it cannot, 
as has aheady been seen, be moved a second time during the same 
session, and, if so moved, is objectionable in point of substance ; 
but where a motion has not been decided, but only disposed of 
temporarily, it is only objectionable if renewed within the time, for 
which it is considered as disposed of, but not afterwards ; as, where 
the proceeding in reference to a particular question is considered as 
precluding any further proceeding in relation to that subject, on the 
same day, no motion can be made relating to it on that day, though 
there may be afterwards. Thus, where a motion is withdrawn by 
the leave of the house, it cannot be renewed the same day ; ^ so, 
where a petition is ordered to lie on the table, a motion cannot be 
received on the same day for referring it to a committee ; ^ and so, 
where a motion has been "suppressed by the previous question, it 
cannot be renewed on the same day.^ 



1 J. of H. 31st Cong. 1st Sess. 577. ^ The principle seems to be, that an order 

* J. of H. 29th Cong. 1st Sess. 1277; Cong, of tlie house cannot be discharged or re- 
Globe, XV. 1223. scinded, on the same day on which it is made, 

* Pari. Reg. XL. 173, 174. nor any motion sustained, or order adopted, 

* Hans. (1), VIII. 1002; Same, (2), V. 171, inconsistent therewith. This principle does 
172, 173. not seem to prevail in our legislative assem- 
blies. 



516 LEGISLATIVE ASSEMBLIES. [PaET VI. 



CHAPTER FIFTH. 

OF MOTIONS FOR THE DISPOSITION OF OTHER BUSINESS. 

1300. A motion being proposed in the form, in which, if adopted, 
it will become the resolution, order, or vote of the house, the most 
simple mode of disposing of it is to submit it to the suffrages of 
the assembly, to be adopted or rejected, as it may think proper. 
But it is not always the case, that the house is ready to come to 
the vote immediately ; it may wish to discuss the question on the 
one side and on the other, before voting upon it; it may wish to 
defer the consideration of it for the present, either for the purpose 
of getting more information, or because some other subject demands 
its instant attention ; the form in which the motion is presented 
may not be satisfactory, and it may be necessary to amend it ; or 
it may wish to get rid of the subject without coming to any vote 
upon it ; or the subject may require a more deliberate and careful 
consideration than can conveniently be given to it in the house, 
acting according to its accustomed forms. 

1301. In order to give expression to the different views of the 
members, and to effect such a disposition of a subject as may be 
satisfactory to the house, certain motions have been invented, and 
are now become established by usage, which are made use of by 
the friends and opponents of every motion, in reference to which a 
difference of opinion is entertained, for the purpose of promoting or 
defeating it. Those motions are the foundation of proceedings of 
different kinds: first, amendment; second, postponement; third, 
commitment; and fourth, suppression. 

SECTioisr I. Of Motions to Amend. 

1302. The term amendment is used to denote any alteration 
which may be proposed or adopted, with a view to render a motion 
conformable to the sense or will of the house. According to the 
etymology of the word, it might be supposed that nothing could be 
considered as an amendment, which did not relate to, and purport 
to improve, the original proposition. But this would be far from 
conveying an adequate idea of what is meant by the term amend- 



Chap. V.] motions to amend. 517 

merit. A proposition may be amended, in parliamentary phrase- 
ology, not only by an alteration which carries out and effects the 
purpose of the mover, but also by one which entirely destroys that 
purpose, or which even makes the proposition express a sense the 
very reverse of that intended by the mover; and, in like manner, a 
motion, which proposes one kind of proceeding, may be turned into 
a motion for another of a wholly different kind, by means of an 
amendment ; so, that, in point of fact, an amendment is equally 
effectual, and is often used to defeat a proposition, as well as to 
promote the object which the mover of that proposition has in view. 
The reason is, that in altering or amending a proposition, the form 
of words only, and not the sense or meaning of it, is regarded ; any 
of the words moved may be left out ; any other words may be 
inserted or added ; and any words may be substituted in the place 
of other words contained in the motion. But, though the sense or 
meaning of a proposition is not regarded, in view of its suscepti- 
bility of being amended, there are nevertheless certain rules relating 
to amendments, which depend upon the substance of the proposi- 
tion to be amended, and which it is therefore important to under- 
stand. 

1303. It will be convenient, in considering the subject of amend- 
ments, j^rs^, to state the general rules applicable to them; second^ 
to treat of them in reference to their substance ; and third, in refer- 
ence to their form ; to which is added a fourth article, treating of the 
congruity of amendments as required by rule in some of the Ameri- 
can legislative assemblies. 



Article I. General Rules applicable to Amendments. 

1304. All amendments, of which a proposition is susceptible, so 
far as form is concerned, must be effected in one of three ways, 
namely, by inserting or adding certain words ; or by leaving out 
certain words ; or by leaving out certain words and inserting or 
adding others. These several forms of amendment are subject to 
certain general rules, which are equally applicable to them all. 

1305. First Rule. When a proposition consists of several sec- 
tions, paragraphs, or resolutions, the order of considering and 
amending it is to begin at the beginning, and to proceed through 
it in course, by paragraphs ; and when a latter part has been 
amended, it is not in order to recur back, and make any amend- 

44 



518 LEGISLATIVE ASSEMBLIES. [PaRT VL 

merit or alteration of a former part. In this case, the presiding 
officer usually gives notice of his progress, in order to afford an 
opportunity for amendments in a subsequent part ; for, otherwise, 
if the latter should be proceeded with and adopted, it would put it 
out of the power of the house to adopt any amendment in any pre- 
ceding part of the proposition as it stands.^ 

1306. Secoistd Rule. Every amendment, which can be pro- 
posed, whether by leaving out, or adding, or leaving out and 
adding, is itself susceptible of amendment; but there can be 
no amendment of an amendment to an amendment; such a 
piling of questions one upon another would tend to embarrass 
rather than facilitate the expression of the wdll of the assem- 
bly ; and, as the line must be drawn somewhere, it has been fixed 
by usage after the amendment to the amendment.^ The object, 
which is proposed to be effected by such a proceeding, must be 
sought by rejecting the amendment to the amendment, in the form 
in which it would be proposed, and then moving it again in the 
form in which it is proposed, and then moving it again in the form 
in which it is wished to be amended, in which it is only an amend- 
ment to an amendment ; and, in order to accomplish this, he who 
desires to amend an amendment should give notice, that, if rejected 
in the form in which it is presented, he shall move it again in the 
form in which he desires to have it adopted.^ Thus, if a proposi- 
tion consists of A B, and it is proposed to amend by inserting C D, 
it may be moved to amend the amendment by inserting E F ; but 
it cannot be moved to amend this amendment, as, for example, by 
inserting G. The only mode, by which this can be reached, is to 
reject the amendment in the form in which it is presented, namely, 
to insert E F, and to move it in the form in which it is desned to 
be amended, namely, to insert E G F. 

1307. Third Rule. Whatever is agreed to by the house, either 
adopting or rejecting a proposed amendment, cannot be afterwards 
altered or amended. Thus', if a proposition consists of A B, and 
it is moved to insert C ; if the amendment prevails C cannot be 
afterwards amended, because it has been agreed to in that form 

lit woidd seem to be proper, therefore, Deb. \an. Part 2, 2410; Cong. Globe, XIL 346; 

wbere the notice above mentioned is not Same, XVIL 319 ; Same, XVIII. 735;) and an 

given, that a motion to amend in a prior part amendment from the other branch appears to 

should take precedence of a motion to amend, be no exception to this rule. (Cong. Globe 

2 An amendment to an amendment of an XXI. 1178; Same, XX. 564; Same, XII. 303.) 

amendment, or as it is called, an amendment ^ Jefferson's Manual, Sec. XXXITI. 
in the third degree, is objectionable: (Reg. of 



I 



Chap. V.] motions to amend. 519 

and, so, if it is moved to leave out B, and the amendment is 
rejected, B cannot afterwards be amended, because a vote against 
leaving it out is equivalent to a vote agreeing to it as it stands. 

1308. Fourth Rule. Whatever is disagreed to by the assembly, 
cannot be afterwards moved again. This rule is the converse of 
the preceding. Thus, if it is moved to amend A B by inserting C, 
and the amendment is rejected, C cannot be moved again ; or, if it 
is moved to amend A B by leaving out B, and the amendment pre- 
vails, B cannot be restored ; because, in the first case, C, and, in the 
other, B, have been disagreed to. 

1309. Fifth Rule. The inconsistency or incompatibility of a 
proposed amendment with the proposition to be amended, or with 
an amendment which has already been adopted, though it may be 
urged as an argument for its rejection by the house, is no ground 
for the suppression of it by the speaker as against order.^ This 
principle admits of an exception in those assemblies in which it is 
provided by rule, that no subject different from that under consider- 
ation shall be admitted under color of amendment. 

1310. Sixth Rule. Motions to amend, as well as principal or 
original motions may be withdrawn or modified by the mover, at 
his pleasure, before being proposed to the house, and, afterwards, 
or where there is no rule on the subject, by leave of the house, 
expressed by an unanimous vote.^ An amendment, which is with- 
drawn by the mover, either of his own authority or by leave of 
the house, may be offered again by him, or renewed by some other 
member.^ 



Article II. Amendments considered with reference to their 

Substance. 

1311. As the house is not necessarily obliged to consider a propo- 
sition, merely because" it is regularly moved and seconded, it is 
consequently in its power to substitute a different proposition for 
the one moved, and this may be done by means of an amendment. 
Thus, where the motion pending was for the house to go into a 
committee of the whole, on the four per cent annuities acts, and a 
motion was made to amend, so as in effect to substitute therefor a 
motion for certain papers connected with the passing of a decree by 
the government of Portugal materially affecting the commercial 

J Jefferson's Manual, Sec. XXXV, « May, R. 0. etc. 131. 

« May, 216. 



520 LEGISLATIVE ASSEMBLIES. [PaRT VL 

relations of that country with Great Britain, and the amendment 
was objected to, on the ground, that it had no relation whatever to 
the subject of the motion, the speaker said, that, according to the 
forms of the house, and the law of parUament, there was no neces- 
sity that the amendment should be akin to the question.^ 

1312. It is. immaterial whether the proposition first submitted, or 
that submitted by way of amendment, is an original motion, or a 
motion relating to the course of proceeding ; thus, if a motion is 
made that a particular order of the day be now read, or that the 
speaker do leave the chair, an original proposition of any kind may 
be moved upon such motion by way of amendment ; and, so, if a 
resolution is moved expressive of the opinion of the house on a 
certain subject, a motion that a particular order of the day be now 
read may be made as an amendment. 

1313. In the house of commons, the right to substitute one sub- 
ject for another, by means of an amendment, has been restricted in 
reference to motions for reading any of the orders of the day, in 
consequence of the practical inconvenience which often resulted 
from the public business being thwarted and obstructed by substan- 
tive motions, which had no connection with the orders of the day, 
being brought forward as amendments upon them. In order to 
remedy this inconvenience, and at the same time, to give the house 
the means of deciding to which order of the day it would give the 
preference, it is now provided by a standing order, that, on a motion 
for reading an order of the day, one amendment and one only shall 
be moved upon it, that amendment being either that the other 
orders of the day be now read, or that some particular order of the 
day be taken into consideration.^ 

1314. This right is also restricted when the house is in commit- 
tee of the whole, having a particular subject under consideration, 
which has been referred by the house to the committee. In this 
case, the power of the committee being derived whoUy from the 
vote of the house ; it is authorized only to consider the subject 
referred to it ; and, consequently, is not at Kberty to admit of the 
introduction of any other subject, by way or in the form of amend- 
ment. 

1315. Upon the same principle of parliamentary law, namely, 
that, in amendments, the form of words only and not their sub- 



1 Hans. (3), XXITI. 7S5; Same, XXX^^II. be seen hereafter, an exception to this rule 
174, 100. In our legislative assemblies, as will commonly prevails. 

- Hans. (3), L. 389, 390; Same, LIV. 1173- 



Chap. V.] motions to amend. 521 

stance is concerned, which allows of the substitution of one subject 
for another by way of amendment, this form of proceeding is fre- 
quently resorted to by the opponents of a motion, to defeat it, 
sometimes by rendering the proposition so absurd, that its original 
friends are obliged to unite with its enemies in voting against it, 
and sometimes by reversing the proposition, and then adopting it 
in a sense the very reverse of what it originally bore. 

1316. Thus, in the British house of commons, January 29, 1765, 
a resolution being moved, " That a general warrant for apprehend- 
ing the authors, printers, or publishers of a libel, together with their 
papers, is not warranted by law, and is in high violation of the 
liberty of the subject : " it was moved to amend this motion by 
prefixing the following paragraph, namely : " That in the particular 
case of libels, it is proper and necessary to fix, by a vote of this 
house only, what ought to be deemed the law in respect of general 
warrants ; and, for that purpose, at the time when the determina- 
tion of the legality of such warrants, in the instance of a most 
seditious and treasonable libel, is actually depending before the 
courts of law, for this house to declare, that a general warrant for 
apprehending the authors, printers, or publishers of a libel, together 
with their papers, is not warranted by law, and is in high violation 
of the liberty of the subject." The amendment was adopted, after 
a long debate, and then the resolution as amended was immediately 
rejected without a division.^ 

1317. But sometimes the nature, of a proposition is changed by 
means of amendments, with a view to its adoption in a sense the 
very opposite of what it was originally intended to bear. The fol- 
lowing is a striking example of this mode of proceeding. In the 
house of commons, April 10, 1744, a resolution was moved, declar- 
ing, " That the issuing and paying to the Duke of Aremberg the 
sum of forty thousand pounds sterhng, to put the Austrian troops 
in motion in the year 1742, was a dangerous misapplication of 
public money, and destructive of the rights of parliament." The 
object of this resolution was to censure the conduct of the minis- 
ters; and the friends of the ministry, being in a majority, might 

1 This mode of dereating a measure, how- by inserting after the words, in the opinion of 

ever, is not always successful. In 1780, Mr. this house, the words, it is now necessary to den 

Dunning having made a motion, in the house dare that, etc. But this amendment, instead 

of commons, " that, in the opinion of this of intimidating the friends of the original 

house, the influence of the crown has increas- motion was at once adopted by them, and the 

ed, is increasing, and ought to be diminished," resolution passed as amended. Comm. Jour. 

Mr. Dundas, lord-advocate of Scotland, in XXX. 70. 
order to defeat the motion, proposed to amend, 

44* 



522 LEGISLATIVE ASSEMBLIES. [PaKT VI 

have voted directly upon the motion and rejected it. But they pre- 
ferred to turn it into a resolution approving of the conduct of minis- 
ters on the occasion referred to ; and it was accordingly moved to 
amend, by leaving out the words " a dangerous misapplication," 
etc., to the end of the motion, and inserting instead thereof the 
words, " necessary for putting the said troops in motion, and of 
great consequence to the common cause." The amendment being 
adopted, it was resolved (reversing the original proposition) " That 
the issuing and paying to the Duke of Aremberg the sum of forty 
thousand pounds, to put the Austrian troops in motion, in the year 
1742, was necessary for putting the said troops in motion, and of 
great consequence to the common cause." ^ 

1318. Motions to amend are subject to the same rules as original 
motions, in reference to their substance, namely, that no motion to 
amend can regularly be made, which contravenes the provisions of 
law, or the standing or special orders of the house, or which is sub- 
stantially the same ^ with a proposition on which the judgment of 
the house has already been expressed dmdng the same session ; or 
w^hich it has under consideration. 

1319. In the application of the last-mentioned rule to the case 
of amendments, when the house has agreed that certain words shall 
stand as part of a question, it is irregular to propose any amend- 
ment to those words, as the decision of the house has already been 
pronounced in their favor ; and, in the same manner, and for the 
same reason when the house has agreed to add or insert words in a 
question, its decision cannot regularly be disturbed, by any amend- 
ment of those words ; though, in both cases, amendments of the 
words may be made, if proposed at the proper time.^ 

1320. In the application of the same rule, it is also considered, 
that when the latter part of a proposition consisting of several para- 
graphs has been amended, this is equivalent to the agreeing to 
every preceding part of the same proposition ; the natural order of 
considering and amending a proposition being to begin at the 
beginning, and to proceed through it in course by paragraphs, with 
suitable pauses in the reading to allow of motions to amend. 

1321. In the application of the same rule, it is further considered 
according to the modern practice, that a motion, which has been 
withdrawn, may be made again during the same session,* though 

1 Comm. Jour. XXIV. 652. the two, presents a different question. Cong. 

2 Where two propositions have been voted Globe, XXL 1281. 
opon separately, an amendment, embodying ^ May, 229. 

* May, R. 0. etc. 131. 



Chap. V.] motions to amend. 523 

it is otherwise incorrectly laid down, that the withdrawal of a mo- 
tion to amend by the leave of the house is so far equivalent to a 
judgment upon it, that the same amendment cannot be moved 
again,^ which, of course, does not apply to amendments with- 
drawn by the mover before being stated to the house.^ 



Article III. Amendments considered with reference to their Form, 

'1322. Amendments, as to their form, are effected in three differ- 
ent modes : firsts by leaving out a part of the words of the motion ; 
second, by adding or inserting other words ; and, third, by leaving 
out certain words for the purpose of and inserting other words. 
To these must be added several other proceedings, which, without 
in strictness belonging to either of these forms, have for then- pur- 
pose the amendment of a proposition, namely: fourth, the division 
of a proposition into two or more questions ; fifth, the filling of 
blanks purposely left or made; sixth, the uniting together of two 
or more propositions ; seventh, the separation of one proposition into 
two or more ; eighth, the transposition of the several parts of a mo- 
tion; and, ninth, the numbering of paragraphs and inserting of 
formal words. These several topics will be considered in their 
order. 

1. Amendments by leaving out Words. 

1323. A proposition, whether consisting of a single paragraph or 
several, may be amended by leaving out a part of the words of 
which it is composed. When it is proposed to amend in this form, 
— that is, by a motion to leave or strike out certain words, — the 
question is always stated in parliament, not whether those words 
shall be left or struck out, but whether they shall stand as part of 
the motion ; so that the mover and those who agree with him vote 
against the question as stated on his motion, and those who are 
opposed to the amendment, vote in favor of the question. 

1324. This form of proceeding on a motion to leave out words, 
seems to be derived from the practice which prevailed at the period 
when it was the business of the speaker to frame the question from 

1 Pari. Reg. XXI. 347, 351, 353, 361. tinctly appear whether the motion was with- 

2 In Hans. (3), LXXX. 432, 798, 854, it drawn by the mover, before it had been stated 
appears, that a resolution, which was moved to the house, or afterwards, and with the 
and withdrawn, was moved again on a subse- leave of the house. 

quent day, and passed. But it does not dis- 



524 LEGISLATIVE ASSESIBLIES. [PaRT VL 

the debate. It seems that although the question was framed by 
the speaker from the turn of the debate, and might therefore be 
presumed to be in accordance with the wishes of the house, any 
member was still at liberty to offer his reasons against it, either in 
whole or in part, and that the question itself might be laid aside by 
general consent. But without such general consent, neither the 
question itself, nor any part of it, could be laid aside or omitted ; 
and although the general debates might run against a part of the 
question, thereby indicating the sense of the house, that it ought to 
be omitted, and authorizing the speaker to do so, yet, if any mem- 
ber, before the question be put -udthout that part, stands up and 
desires that such words or clause stand in the question, before the 
main question is put, a question is to be put, whether those words 
or such clause shall stand in the question.^ 

1325. But, though this form of proceeding had its origin in a 
practice which is no\\^ out of use, it is founded in good reason ; the 
question is thus taken in the same manner on a part as on the 
whole of the principal motion, which would not be the case, if the 
question was stated on striking or leaving out ; inasmuch as the 
question on the principal motion, v^hen it comes to be stated, wiU 
be on agreeing to the motion, and not on leaving out or rejecting 
it. Besides, in the house of lords, where the chancellor has no cast- 
ing vote, and an equal division is equivalent to a negative, the 
same question would be decided differently according to the man- 
ner of stating it; if stated on the words standing, the question 
would be decided in the negative by an equality of votes, and the 
words would consequently be omitted ; whereas, if the question 
were stated on striking out, an equal division would retain the 
w^ords. If, therefore, when it is proposed to amend by omitting 
words, the question is stated on striking out and decided in the 
negative by an equal division, and the entire motion, on being put 
to the question, is then decided in the negative, by an equal 
division, the same words are both retained and rejected by pre- 
cisely the same vote. 

1326. In the legislative assemblies of this country, after some 
diversity of practice, occasioned probably more by the taste and 
fancy of presiding officers than by any considerations of fitness, the 
question on leaving out words is always stated, not whether those 
words shall stand as part of the question, but whether they shall be 
struck out. The effect of a decision in this form is precisely the 
same. 

1 ScobeU, 22, 23. 



Chap. V.] motions to amend. 525 

1327. If an amendment is proposed by leaving out a particular 
paragraph or certain words, and the amendment is rejected, that is, 
if, on the question that the words proposed to be struck out stand 
as part of the motion, it is decided that the words shall stand, it 
cannot be again moved to leave out the same words or a part of 
them ; but it may be moved to leave out the same words with 
others or a part of them with others, provided the words so proposed 
to be left out do in fact constitute a different proposition from that 
already decided. 

1328. K an amendment by leaving out is agreed to, it cannot be 
afterwards moved to insert the words left out or a part of them in 
the same place ; but it may be moved to insert the same words in 
another place, or the same words with others, or a part of them 
with others, in the same place, provided these propositions are sub- 
stantially different from a motion to insert the same words or a 
part of them in the same place. 

1329. When it is proposed to amend by leaving out a particu- 
lar paragraph or certain words, the amendment proposed may be 
amended in three different ways, namely, by leaving out a part only 
of the paragraph or words proposed to be left OTjt,lor by inserting 
or adding other words,^or by leaving out and inserting. 

1330. The effect of-Voting on a proposed amendment by leaving 
out being, as already stated, that if the words are left out, they 
cannot be reinserted, and, if retained, they cannot be amended ; it 
is necessary that those who desire to retain the words, should 
amend them, if any amendment is requisite, by making their mo- 
tions for that purpose, and this they have a right to do, before the 
question is taken on the motion to leave out.^ 

1331. As an amendment must necessarily be put to the ques- 
tion before the principal motion, so the question must be put on 
an amendment to an amendment, before it is put on the amend- 
ment ; but, as this is the extreme limit to which motions may be 
put upon one another, there can be no precedence of one over 
another among amendments to amendments, which must conse- 
quently be put to the question in the order in which they are 
moved. 

1 Jefferson's Manual, XXXV. It is pro- strike out being lost shall preclude neither 
vided by rule in the house of representa- amendment nor a motion to strike out and 
tives of the United States, that a motion to insert. 



526 LEGISLATIVE ASSEMBLIES. [PaRT VL 



2. Amendments hy inserting Words. 

1332. This is the second form in which amendments may be 
made ; and when an amendment is proposed in this form, if it 
prevails, it cannot be afterwards moved to leave out the same 
words or a part of them ; but it may be moved to leave out the 
same words, with others, or a part of the same words, with others ; 
provided these propositions are substantially different from the first. 
On the other hand, if the amendment is rejected, it cannot be 
moved again to insert the same words or a part of them in the 
same place ; but it may be moved to insert other words in the same 
place,^ or the same words in a different place, or the same words 
with others, or a part of the same words with others, in the .same 
place, provided these are really different propositions from that 
ah'eady decided. 

1333. When an amendment is proposed by the insertion oi 
addition of certain words, the proposed amendment may itself be 
amended in three different ways, namely, by leaving out a part,^ or 
by inserting, or by leaving out and inserting ; and, if any amend- 
ment of words proposed to be inserted is necessary, those who are 
in favor of the motion should make the needful amendments, as 
they have a right to do, before the question is taken ; because, if it 
is rejected, it cannot be moved again, and, if adopted, it cannot 
be amended.^ 

1334. There is no precedence of one over another in motions 
for amendments to amendments by inserting, any more than in 
motions to amend amendments by leaving out. 



3. Amendments hy leaving out and inserting. 

1335. This form of amendment is a combination of the two pre- 
ceding; and, when moved, is treated precisely like those two 
motions and put consecutively to the question, first, to leave out 
the words objected to, and, second, to insert the others proposed in 
their place.^ 

1 See Comm. Jour. LVI. 209, where several * It is immaterial whether the motion is, to 
Buccessive motions to insert different words strike out certain words and insert others in 
in the same place, were made and negatived. their place, or to strike out certain words in 

2 See Comra. Jour. XXX. 70. one place, and add or insert words in another 
« Jefferson's Manual, Sec. XXXV. place. 



Chap. V.] motions to amend. 527 

1336. "When this motion is made, the question is first proposed, 
that the words moved to be left out stand part of the question ; and, 
if this question is decided in the negative, that is, that the words be 
left out, then another question follows, that the words proposed as 
a substitute be inserted in the place of the words so left out. 

1337. If the fij-st question is decided in the affirmative, aU amend- 
ment or alteration of the words thus agreed to is precluded in the 
same manner as if the motion had been simply to leave out the 
same words.^ Nor can a motion be then made to leave out for the 
purpose of inserting the same, or even different words ; the words 
of the original motion being already agreed to as they stand. 

1338. If the first question is decided in the negative, and the 
words are accordingly left out, then, on the second question, the 
words proposed as a substitute are to be treated and may be 
amended, in the same manner as on a motion simply to insert ; 
and, if rejected altogether, other words may be proposed; or 
the proposition may be left as amended only by the leaving 
out. 

1339. Where the question on words being left out is stated on 
their standing as part of the question, the motion to leave out and 
insert could not, without much awkwardness and inconvenience, 
be proposed as a single question ; but where the motion is stated in 
the other form, one question only is commonly put, unless it is 
divisible on the demand of a member, or is divided by order of the 
assembly, in which case it may be put, and with the same effect, as 
tw^o questions. 

1340. Where this question is put in the parliamentary form, or 
is put in the other form, as divided, it has precisely the same form, 
and is attended with the same effect and operation, as the two 
motions to leave out and insert taken consecutively. Where it is 
taken as a single proposition, the proceeding may be more compli- 
cated, inasmuch as the friends of the words proposed to be left out, 
and the friends of the words proposed to be inserted, having the 
right to amend those words respectively, questions for amending 
both sets of words must be taken, before the question is proposed 
on striking out and inserting.^ A motion to amend by striking out 
certain words and inserting others being negatived wiU not preclude a 
motion to strike out the same words, and to insert others of a tenor 



1 It appears, in the house of representatives virtue of a special rule. Cong. Globe, XV. 
of the United States, to be held otherwise, in 1115,1116. 

2 Jefferson's Manual, Sec. XXXV. 



528 LEGISLATIVE ASSEMBLIES. [PaET VL 

different from those first proposed ; or to strike out different words, 
and insert the words first proposed; or to strike out the same 
words, and insert nothing. These are different propositions, and 
others may be imagined. 

1341. When it is moved to amend by striking out certain ^vords 
and inserting others, the manner of stating the question is, first to 
read the whole passage to be amended, as it stands ; then the words 
proposed to be struck out ; next, those to be inserted ; and lastly, 
the whole passage as it will stand when amended. The question 
may then be taken, either singly, or as divided according to the 
practice of the assembly.^ 



4. Division of a Proposition into two or more Questions. 

1342. The mover of a proposition, as has already been seen, is at 
liberty to submit it in such form as he pleases, provided only that 
it is expressed in parKamentary language. Hence it sometimes 
happens, that a motion consists of several different parts, in refer- 
ence to which different opinions are entertained ; but which, never- 
theless, as the motion stands, must be voted upon together ; so that 
a member, who approves of a part of the motion, but not of the 
residue, must, if he votes at aU, vote against his inclination and 
judgment, as to one or another part of it. 

1343. When a motion is complicated in this manner, there are 
two modes of proceeding, with a view to enable members to vote 
upon the parts separately, namely, to move that the proposition be 
amended by leaving out a part of the words composing it, or that 
it be separated and divided into as many questions, each to be 
voted upon by itself, as the mover thinks proper, or as there are 
different and distinct parts to the motion. 

1344. The first method has this advantage over the other, that 
when the motion to amend is made and seconded, members have 
then an opportunity of expressing their sentiments dh-ectly and at 
once upon the several parts of the motion, as they are presented by 
the amendment ; and this method is ordinarily sufficient, where the 
motion is only susceptible of a division into two parts ; but where 
it consists of more than two parts, the other form of proceeding is 
more simple and effectual. 

1345. The second mode has this advantage over the first, thai 

^ Jefferson's Manual, Sec. XXXV. ; Hatsell, II. 80, 87. 



Chap. V.] division of motions. 529 

where the motion consists of more than two parts, it is at once 
divided into as many questions as there are parts ; though as this 
is done only in pursuance of a previous vote, it is not in the power 
of any two members, by this mode, to bring the house to vote 
directly upon the different parts of the motion, but only to a vote 
upon the motion that the question be divided.^ 

1346. When a motion is made for dividing a question, the 
motion should state the manner in which the mover proposes that 
the division should be made ; and, if this is not satisfactory to the 
house, the motion may be amended, like any other motion for an 
amendment. K the motion prevails, the question accordingly 
becomes a series of questions, to be separately considered and 
voted upon, as so many independent propositions, in the order in 
which they stand. 

1347. It is usual in the legislative assemblies, and in other 
dehberative bodies, in this country, to provide by a special rule, 
that every complicated question, which is susceptible of division, 
in point of form, shall be divided by the presiding officer, and 
put to the vote in its several parts, upon the demand of a single 
member. When there is such a rule, the member calling for the 
division states, in the first instance, into how many and what parts 
and in what order he requires the division to be made, and the 
division is made accordingly, unless the member is overruled by the 
presiding officer, or the assembly. When there is no such rule, a 
division can only take place, by means of a motion and question 
for that purpose, under the common parliamentary law.^ This 
motion or suggestion is incidental to the general course of business,^ 
and may be made at any time after the question is stated, and 
before it is taken. 

1848. In all cases, both where a division is moved for, and where 
it is demanded, it is for the presiding officer, subject, of course, to be 
overruled by the assembly, to decide, whether the proposition in 
question is susceptible of the division moved or called for or not.^ 
A motion, in order to be divisible, must comprehend points so dis- 
tinct and entire, that if one or more of them is taken away, the 
others may stand entire and by themselves ; but, a qualifying para- 
graph, as, for example, an exception or a proviso, if separated from 
the general assertion or statement to which it belongs, does not con- 
tain such an entire point or proposition.* 

» Appendix, XII. s Jefferson's Manual, Sec. XXXVI. 

» J. of H. 27th Coug. 1st Sess. 132. * But see J. of H. 26th Cong. 2d Sets. 311. 

45 



530 



LEGISLATIVE ASSEMBLIES. 



[Paet VI. 



1349. The rule of the congi-ess of the confederation was, that if 
the question in debate contained several points, any member might 
have the same divided ; and the rule of the house of representatives 
of the first congress under the constitution was, that any member 
might call for the division of a question, where the sense would 
admit of it. Under these rules, the practice seems to have been, to 
regard rather the substantial meaning of a proposition, than the 
form of words in which it was expressed. In many cases, a propo- 
sition was held to be divisible in which some of the members, if 
adopted, would require the addition of formal or technical words 
by the clerk, to make them into distinct propositions. In others, 
again, propositions were held to be divisible, the second member of 
which was a mere qualification of the first, and recorded on the 
journal to have,. failed, of course, without a question, in consequence 
of the failure of the first. The rule above mentioned is now applied 
■udth more strictness, and it is accordingly held, that, in order to be 
divisible, a proposition must not only contain distinct points, but 
each of those points must be expressed in distinct words, so as to 
stand by itself. A motion to commit with instructions,^ which, 
according to the old practice, might be divided, and the question 
put first on the commitment, and second on the instructions, is not, 
at the present day, divisible ; the instructions not constituting a dis- 
tinct point, which can stand of itself, in case the commitment 
fails. 

1350. When a proposition is thus divided it becomes a series of 
propositions, to be considered and discussed, like separate motions 

, in the order ^ designated in the motion or question on wMch the 
division takes place, or if it designates no order then in the order 
in which they stand in the original proposition ; and as each mem- 
ber is taken up for consideration, it may be further divided if 
divisible, until the original proposition is divided into aU the dis- 
tinct propositions, into which it is susceptible of being divided. 
Thus if the proposition A B C D is moved, and divided into two 
members A B, and C D, and the first member is taken up for con- 
sideration, it may be further divided, if divisible, into A and B, and 
when the first member of the original division is disposed of, and 
the second one C D, is taken up, that may be further divided, if 
divisible, into C and D. 

1351. The divisibility of a motion is to be determined at the 
time when a division is called for, and not mth reference to the 



1 Cong. Globe, XXI. 1754, 1756, 2 Cong. Globe, XX. 



319, 320. 



Chap. V.] division of motion's. 531 

state of the motion at the time it was made. Thus, if the proposi- 
tion A B C D is moved, which is then divisible into three parts 
only, namely, A, B, and C D, and is divided accordingly ; the first 
and second members of which being considered and adopted, the 
third is taken up, that member, which was originally indivisible, 
having become divisible by the adoption of A and B, may now be 
divided into C and D.^ 

1352. When a division takes place, each member of it, from that 
time forward, becomes and is treated and disposed of as a separate 
motion ; and the motions then moved on the original proposition, 
and pending, are separately applicable to each member of it. Thus, 
if the proposition A B C D being pending, a motion is made that it 
be ordered to lie on the table, and then a division of the principal 
motion is called for, and it is divided accordingly into A, B, C, and 
D, the motion to lie on the table coheres to each member of the 
motion, and is the first question to be put upon each when it is 
taken up in its order for consideration. 

1353. It is common in this country, to provide, that certain 
motions, particularly the motion to strike out and insert, shall not 
be divisible. This provision of course applies as well to motions 
as suggestions for a division. 



5. Filling Blanks. 

1354. It often happens that a proposition is introduced with 
blanks purposely left to be filled by the house, either with times and 
numbers, or with names or other provisions analogous to those of 
the proposition itself. These blanks are filled in the order in which 
they occur, when the proposition is under consideration. Blanks of 
the latter description give rise to motions to amend which do not 
differ from other amendments, but which are proceeded with in 
the same manner, and governed by the same rules as motions to 
amend by inserting. 

1355. Blanks to be filled with times or numbers are also treated 
in the same manner, when only one proposition is offered ; but 
when it is desired that several different times or sums should be 
voted upon, they are not offered as amendments of one another, but 
are considered as original motions, to be made and decided before 
the principal question. In a proceeding of this kind, the members 
make their several propositions, which are then put to the question, 

1 Cong. Globe, XXI. 1754, 1756, 



632 LEGISLATIVE ASSEMBLIES. [PaRT VI. 

one after another in their order, beginning \\dth the least sum or 
longest time, as the case may be, and so on to the greatest sum or 
shortest time, or until the house comes to an agreement upon some 
one of the times or sums mentioned. This order of taking the 
question is in conformity with an ancient rule, that " where there 
comes a question between the greater and lesser sum, or the longer 
and shorter time, the least sum and the longest time ought first 
to be put to the question." ^ 

1356. This rule evidently had its origin in that period of parlia- 
mentary history, when it was the custom for the speaker to frame 
the question from the turn of the debate, and was doubtless intend- 
ed to control his discretion as to the question, so as to secure to the 
house the freest exercise of its constitutional power in regard to 
the burdens to be imposed upon the people. The reason of the 
first part of the rule, that the least sum is to be fijst put to the 
question, is, " that the burdens imposed upon the people might be 
as easy as possible." The reason of the other part, that the longest 
time is to be put first, relates to the mode in which subsidies, the 
ancient manner of granting aids to the crown, were given. The 
custom was, to give so many subsidies, to be levied in such a 
time ; and the longer, that is, the further off, the time was in which 
the subsidy was to be collected, the easier for the subject.- This 
rule, though originally introduced into parliament with reference 
merely to the burdens to be imposed upon the people in the way 
of taxes, and therefore appKcable in modern times only to the com- 
mittees of supply and of ways and means, is now understood to be 
general in its application to other committees, and other subjects.^ 
But it does not extend to the proceedings of the house on the re- 
port fi-om a committee where amendments are proposed in the com- 
mon form,^ nor to other proceedings in the house.'' 

1357. In the legislative assemblies of this country, the rule as to 
filling blanks prevails, and is usually observed not only in commit- 
tee of the whole, but in proceedings in the assembly itself. The 
order to be followed in putting sums and times to the question is 
fixed by a special rule, which usually requires the largest (instead 
of the least) sum, and the longest (that is the fm-thest ofi") time, to 
be first put to the question. This is the rule in both branches of 

1 Comm. Jour. IX. 367. ° An instance occurs in Comm. Jour. XXXV. 

- Hatsell, n. Ill, note; Same, IK. 173, 184, 370, where two motions to adjourn the debate 

185. appear to h.ive been pending at the same time, 

8 May, 289. the nearest of which was put to vote and waa 

* HatseU, III. 184, note. carried, although the other was tirst made. 



Chap. V.] addition, etc. congruitt. 533 

congi-ess. It is immaterial whether the blank is left or first created 
for the purpose. 



6, 7, 8, 9. Addition, — Separation, — Transposition, — Numbering' 
of Paragraphs, — Formal Words. 

1358. When the matters contained in two separate propositions 
may be more properly united together in one, the mode of proceed- 
ing is, to reject one of them, and then to incorporate the substance 
of it with the other by way of amendment.^ 

1359. So on the other hand, if the matter of one proposition 
would be more properly distributed into two, any part of it may be 
struck out by way of amendment, and put into a form of a new 
and distinct proposition.^ 

^ 1360. In like manner, if a paragraph or section requires to be 
transposed, a motion may be made and a question put for leaving 
it out where it stands, and another for inserting it in the place de- 
sired.3 

1361. The numbers prefixed to the several sections, paragraphs, 
or resolutions which constitute a proposition, are merely marginal 
indications, and no part of the text of the proposition itself ; and, if 
necessary, they may be altered or regulated by the clerk, without 
any vote or order of the house.* 

1362. Formal words, also, made necessary by amendments, may 
be added by the clerk without any vote ; thus, where the word 
" that " was the only word remaining of a motion as originally 
made, the residue being added by way of amendment, the word 
" resolved " was prefixed as a matter of form.^ 



AnTiCLE IV. Of the Congruity of Amendments as required by Rule 

in this Country. 

1363. The inconsistency of a proposed amendment with the 
proposition to be amended, either in idea or in words, is, as has 
already been seen, no objection to it in a parliamentary sense, or 
as a matter of order. It is true, that if a motion, whether in the 

1 J. of H. VIII. 624, 851; Same, 26th Cong. Same, 24th Cong. 1st Sess. 1050; Cong. Globe, 
2d Sess. 279. XIII. 538. 

2 It might be more convenient to refer the ^ j, gf H. III. 333. 
subject-matter of this and the two preceding * J. of H. 29th Cong. 1st Sess. 1029. 
paragraphs to a committee with instructions. ^ Hans. (3), LVIII. 667, 673. 

Sec also, J. of H. VII. 188; Same, VHI, 159; 

45* 



534 LEGISLATIVE ASSEMBLIES. [PaRT VI, 

form of an amendment, or of an original proposition, is the same 
with one upon which the judgment of the house has akeady been 
expressed, either in the affirmative or negative, or which is still 
pending, it is objectionable on that ground ; but the converse of this 
principle is not true, except in virtue of a special rule to that effect, 
and it is ordinarily no objection to a proposed amendment, that it 
is inconsistent -^dth the measure to be amended. This is very 
commonly, though not universally, the case in the American legis- 
lative assemblies ; as, for example, in the house of representatives, 
but not in the senate, of the United States.^ 

1364. In the congress of the confederation, the first legislative 
body of a general character ever assembled in this country, and 
which was the. immediate precmsor of the congi-ess of the United 
States, under the constitution, it was a very common practice, by 
means of amendments, to separate and remove from before the 
assembly topics originally moved and under debate. In this way 
the consideration of important and interesting measures was some- 
times postponed, and others brought forward without due notice or 
preparation. A remedy for the inconvenience which resulted from 
this practice, was first attempted in the code of rules adopted by 
congi-ess in the year 1781. The fifteenth iTde is in these words, 
" No new motion or proposition shaU be admitted under color of 
amendment as a substitute for the question or proposition under 
debate, until it (the latter) is postponed or disagreed to." Under 
this rule, which continued in force until the organization of the 
government under the constitution, new propositions might still be 
introduced as amendments ; but the question was fii-st to be put 
and taken on postponing or disagreeing to the propositions origi- 
nally made. 

1365. The house of representatives of the fii-st congress, which 
assembled under the constitution, on the 4th of March, 1789, 
adopted a code of rules for the conduct of its business, among 
which is the following : " No new motion or proposition shall be 
admitted under color of amendment, as a substitute for the motion 
or proposition under debate." This rule, as a remedy for the 
evil in question, was insufficient in two respects ; in the first place, 
the new proposition or motion, although inti-oductory of a new 
subject, was not objectionable, unless it was offered as a sub- 
stitute ; and, in the second place, it was objectionable, if offered as 
a substitute, although it introduced no new subject ; thus precluding 

1 Con^. Globe, XX. 466, 629. 



Chap. V.] congruity of amendments. 535 

even amendments of form, provided they were offered as substi- 
tutes. This continued to be the form of the rule until it was 
changed in 1822 and expressed in its present terms. 

1366. This rule, adopted in March, 1822, reaffirmed by every 
succeeding congress, and extensively adopted in other legislative 
assemblies, is as follows : " No motion or proposition, on a subject 
different from that under consideration, shall be admitted under 
color of amendment." Under this rule, the new proposition is not 
objectionable, unless it is on a subject different from that under 
consideration ; and in that case, it is inadmissible, even though it 
is not offered as a substitute. In determining whether a proposed 
amendment comes within this rule, the inquiry relates to the sub- 
ject-matter, and not to the proposition ; the former may remain 
the same, while the latter is changed or even reversed. Thus, a 
resolution that the prayer of a particular petition ought to be grant- 
ed may be amended by inserting the word "not" before " ought;" 
the subject remaining the same, but the resolution being thereby 
reversed. Generally speaking, there can be little or no difficulty 
in determining whether a proposed amendment relates to the same 
or another subject. It is immaterial whether the amendment ap- 
plies directly to the measure in question, or indirectly through the 
medium of instructions to a committee.^ The following decisions 
under this rule will show how it is appHed in practice. 

1367. Thus, on a resolution, " that the committee on manufac- 
tures be vested with authority to send for persons and papers," it 
is not in order to amend by striking out all after the word re- 
solved, and inserting a resolution " that it is expedient to amend 
the present existing tariff," ^ etc. So, on a bUl making an appropri- 
ation for fortifications and ordnance, it is not in order to amend 
instructions on committing, by adding thereto a provision relating 
to the disposition of the proceeds arising from the sale of the pub- 
lic land.^ So, on a bill further to extend the time for locating orig- 
inal military land warrants and returning surveys thereof, it is not 
in order to move an amendment that such warrants may be located 
upon any lands of the United States which may then be subject 
to private entry.* So, where it was moved to recommit a bill re- 
lating to judicial salaries with instructions to inquire into the 
expediency of raising the salaries of district judges, it was held to 
be inadmissible to amend the instructions so as to inquire into the 

1 Cong. Globe, XXIII. 523, 526. « J. of H. 27th Cong. 1st Sess. 223. 

s J, of H. 20th Cong. 1st Sess. 103. -i .1. of H. 30th Cong 1st Sess. 737. 



586 LEGISLATIVE ASSEMBLIES. [PaRT VL 

expediency of equalizing the salaries of the marshals and district 
attorneys.! Qq^ on g, resolution for the supply of the members with 
stationery, it is not in order to ingraft an amendment proposing 
additional compensation to persons in the employment of the 
house.^ 

1368. Where it is proposed by means of an amendment to 
change a particular into a general provision, the case appears to 
be attended with more difficulty. Thus, it is not in order to amend 
a bill for the relief of a single individual, by turning it into a 
general provision of law ; ^ on the contrary, where a bUl was under 
consideration granting the right of way, and making a grant of 
lands to the State of Michigan, it was held adixdssible to amend it 
by adding thereto a pro^dsion for a similar grant to other States for 
sundry raiboads therein.^ But the rule seems to be now well estab- 
lished, that in a bill for the relief of a single individual, it is not 
in order to amend, either by inserting a provision for the relief of 
another individual, or of certain other individuals, or by the insertion 
therein of a general provision,^ that is to say, by turning a private 
into a general bill. 

1369. In the foUo"udng cases, the distinction taken by the house 
is more shado^^y. A bill being pending, proposing to the State of 
Texas, the establishment of her northern and western boundaries, 
the relinquishment of aU territory derived by her exterior to the said 
boundaries and of aU her claims upon the United States, it was 
moved to amend the same by adding thereto t^vo new sections pro- 
viding territorial governments for the territories of New Mexico 
and Utah. This amendment, being called in question as not ger- 
mane to the bill, was held admissible by the speaker, on the 
ground that the subject of the bill was the territory acquired by 
the United States from Mexico, and that all propositions affecting 
that territory were germane to the biU. This decision was sus- 
tained by the house on appeal, and a similar decision made the 
next day was acquiesced in. But subsequently, a biU being 
pending for the admission of the State of California into the 
Union, and an amendment being moved thereto, providing a ter- 
ritorial government for Utah, which was objected to as not ger- 
mane to the bUl, the latter was sustained by the speaker on the 
ground above mentioned. On appeal, the decision of the chaii 
was overruled.^ 

1 J. of H. 30th Cong. 2d Sess. 382. * J. of H. Slst Conor. 1st Sess. 967. 

« J. of H. 31st Cong. 1st Sess. 1510. = Cong. Globe, XXm. 312, 523, 526. 

» J. of H. 31st Cong. 1st Sess. 784. « J. of H. 31st Cong. 1st Sess. 1333, 1415. 



Chap. V.] motions to postpone. 537 



Section II. Of Motions to Postpone. 

1370. A proposition being made to the house for its adoption, 
the house may either proceed at once to consider and act upon it, 
or may assign some future time, either on the same or a subsequent 
day, for its consideration. In the former case, the proposition may 
be either accepted, or rejected, or otherwise disposed of, at the 
time ; or, if necessary after a partial consideration, may then be 
postponed for further consideration to a future day. In the latter 
case, the subject subsides until the time fixed for its consideration, 
when it is considered and acted upon, and then either accepted, or 
rejected, or again further postponed for consideration. 

1371. The postponement of a proposition sometimes takes place 
for the convenience of the house ; sometimes in virtue of a special 
rule relating to the particular subject ; sometimes in consequence 
of the different stages, through which it must pass, each on a differ- 
ent day. before it can be adopted ; in aU which cases, the proceed- 
ing is conducted by the friends, or, at least, by those who are not 
the opponents, of the measure ; and the time, to which the subject 
is postponed, is fixed at a reasonable and convenient day, facili- 
tating, or, at least, not obstructing, its adoption. 

1372. This is also a mode of proceeding made use of by the 
opponents of a measure to defeat it ; and, when a postponement is 
moved with this view, the time fixed is a day beyond the usual and 
probable duration of the session. A motion to postpone to a day 
beyond the session, though moved to defeat the proposition in 
question, is, in a parliamentary point of view, the same as a motion 
to postpone to a day within the session, — is governed by the same 
rules, — and if it prevails, attended with the same parliamentary 
result. 

1373. When a proposition, either on its original introduction 
into the house, or on passing one of its stages, or after having been 
partly considered at any time, is thus assigned for consideration on 
a particular day, by an order of the house, the subject so assigned, 
or perhaps more properly, the order for its consideration on the day 
fixed, is called the order of the day for that day. If, in the course 
of business, as commonly happens, several orders are made for the 
consideration of different subjects on the same day, they are called 
the orders of the day. The orders thus made are registered, under 
the date of each day, in a book kept for the purpose, called the order 



538 LEGISLATIVE ASSEMBLIES. [PaRT VL 

book, which is constantly on the table of the house, for the inspec- 
tion and information of the members. 

1374. The effect of an order to postpone a subject or to assign 
it for consideration on a future day is, in general, to remove it from 
before the house, until the day assigned. If the postponement has 
taken place, on the motion of those who are opposed to the measure, 
and the day assigned is beyond the session, the postponement is 
equivalent to a rejection. But, in order to explain the subject fuUy, 
it will be necessary to consider what is the operation of such an 
order ; 1, on the day on which it is made ; 2, between that day and 
the day assigned ; 3, on the day assigned ; 4, after the day assigned, 
to which wiU be added, 5, an explanation of the motion to post- 
pone according to parliamentary usage in American legislative 
assemblies. 



I. Effect of an Order for Postponement^ on the Day on which it is 

made. 

1375. On the day, on which the order of postponement is made, 
that order cannot be rescinded or discharged, nor any other order 
made, or proceedings take place inconsistent with the former order ; 
it being a general rule, that every order of the house whether 
afiimative or negative must stand as such dming the day on which 
it is made.-^ 



2. Effect of, between the Day of the making" of the Order and the 

Day assigned. 

1376. During this period, the operation of the order is to post- 
pone the consideration of the' subject of it, until the day assigned, 
so that whilst the order remains in force, it cannot be regularly con- 
sidered untn that time.2 The order itself, in the mean time, may 
be considered, and either discharged without being renewed, or it 
may be discharged and renewed for a day subsequent to that 
originally assigned.^ But it cannot be discharged and renewed for 
a day previous,* except under peculiar circumstances ; as, where on 
some complaint or other proceeding against a member, an order 

1 Hans. (1), \Tn. 1002; Same, (2), V. 171, ^ Parl. Reg. XX^^IL 414; Same, XLIV. 
172, 173; Pari. Reg. XLIV. 230. 230. 

2 See also J. of S. I. 408; J. of H. 31st Cong. * Hans. (1), XVIH. 755, 756, 757, 758; Same, 
1st Sess. 405; Cong. Globe, XV. 124. IX. 845, 846; Same, VII. 518. 



Chap. V.] motions to postpone, 539 

having been made for his attendance in his place, on a particular 
day, the order was discharged at his request and for his conven- 
ience, and renewed for' a day previous to that originally fixed.^ 
When an order is discharged, without being renewed, the subject 
of it remains in precisely the same situation, as when the order was 
made, and, if renewed, the proceeding must commence at that 
point. 

• 3. Effect of^ on the Day assigned. 

1377. A subject, which is thus assigned for consideration on a 
particular day, is thereby to a certain extent made a privileged 
question for that day ; although it is still within the power of the 
house, if it pleases, to proceed with other business on the same 
day, even to the entire exclusion of the matter which is the order of 
the day. It does not result from the fact of an order being made 
for the consideration of a particular subject on a day assigned, that 
no other business can be attended to on that day, or even that the 
subject assigned shall be first considered. If, therefore, on the day 
assigned, and before proceeding with the order of the day, any 
other subject is moved and seconded, it may be proceeded with and 
disposed of, if the house acquiesces, before the order of the day is 
taken up ; but, inasmuch as the subject of the order of the day has 
been assigned for consideration on that day, and is thus entitled, so 
far as a previous determination of the house can entitle it, to a 
preference over other subjects, it is competent for any member,^ 
when a motion is made to introduce any other subject, or while 
such other topic is under consideration, to move that the house pro- 
ceed with the order of the day ; and this motion will take prece- 
dence of the question first made, and must be first put and decided. 
If the motion for the order of the day is determined in the affirma- 
tive, the subject first introduced is suppressed for the day, and the 
house proceeds with the order of the day ; if in the negative, the 
subject of the order of the day is suppressed for the day, and the 
house proceeds with the business first introduced. A subject may 
be postponed to a particular day, merely, without being made an 
order of the day for that day. 

1378. If there are several orders of the day, the house may either 
proceed with them all, or with any one in particular. When the 
house votes to proceed with the orders generally, they are to be gone 

1 Haus. (1), XXI. 1092. a Pari. Keg. XLIV. 230. 



540 LEGISLATIVE ASSEMBLIES. [PaRT VI. 

through with in course as they stand in the order book. Where 
they are proceeded with separately, no one is entitled to any prefer- 
ence over the others; and therefore, a motion to proceed with a 
particular order cannot be superseded by a motion for any other 
or for the orders generally.^ Where one or more of several orders 
of the day have been gone through with, those that are left still 
constitute the orders of the day. 

1379. In order to proceed with the orders of the day, on the day 
assigned, a motion must be made, either that the order of the day, 
if there be but one, or the orders of the day generally, if there are 
several, or that a particular order, if it is desired to proceed with 
one only out of several, be now read. If no such motion is made 
during the day, the orders drop, that is, become inoperative in con- 
sequence of the time assigned passing by without their being exe- 
cuted. If the motion is negatived, the same result follows, in point 
of fact ; because the motion for the orders cannot be made again 
on the same day ,2 and by the expiration of the day without their 
being proceeded with, they drop of course. 

1380. On this motion being made, any member who wishes 
merely to postpone the subject or subjects of it, may effect his 
object by moving to amend by leaving out the word " now," to 
insert the day to which he desu-es the postponement to take place. 
A similar motion to amend may be made use of to defeat the mo- 
tion for the present reading of the order or orders, by fixing upon a 
time for the postponement beyond the probable and usual duration 
of the session. If the motion to amend is made in the first instance, 
for the purpose of postponement merely, and, on the question being 
put, that the word " now " stand part of the motion, that word is 
left out, and the other part of the motion, namely, to insert the time, 
is then put, the amendment is open to be amended by substituting 
for the day proposed a day beyond the session. 

1381. If the motion for present reading prevails, then the order 
of the day, if there is but one, or the particular order moved, or the 
first of the orders, in course, if there are several, is then read. 
The order being read, the business thereby assigned is brought to 
the knowledge of the house, and must either be proceeded with, laid 
aside, or further postponed to a time within or beyond the session. 
If the order is to be proceeded with, the appropriate motion, as 
indicated by the subject or terms of the order, is then to be made 
and seconded. If no such motion is made, the order drops ; if 

1 May, 218. 2 Pari. Reg. XLIV. 230. 



Chap. V.] motions to postpone. 541 

made, the subject is then considered and disposed of. K the busi- 
ness is not to be proceeded with, but laid aside, then as soon as the 
order is read, a motion must be made that it be discharged. If this 
motion prevails, the business remains precisely where it was before 
the order was made, and may either be renewed for a future day or 
suffered to subside. 

1382. But the opponents of the measure when the order of the 
day is discharged may defeat it beyond the possibility of revival, 
by renewing the order for, that is, postponing the subject to, a day 
beyond the session. If the motion to discharge the order should 
not be carried, the business may then be proceeded with as before 
mentioned. If the subject of an order of the day is to be further 
postponed, a motion should be first made to discharge the order, 
and, if this motion prevails, then a second motion to renew it for a 
future day. In all these cases, where a motion is made to renew the 
order for a future day, by those who are in favor of proceeding with 
it, those opposed may propose amendments fixing the time of post- 
ponement at a day beyond the session. 

1383. After the subject of an order has been proceeded with it 
may be further postponed, by its friends, to a day within, or by its 
opponents, to a day beyond the session, by means of a motion to 
adjourn the debate. If this motion prevails, the order for adjourn- 
ing the debate to the day fixed is an order of the day for that day ; 
and, when the business is resumed on the day to which it stands 
postponed, it is taken up at the precise point, where it was left on 
the adjournment.^ The adjourned debate being considered, in a 
parliamentary point of view, as a continuation of the original 
debate, and as making a part of it, on resuming, the motion may 
then be withdrawn or suppressed by the previous question.^ A 
motion to adjourn the debate is not regular, on the question that 
the order of the day be read ;^ nor until the subject of it has been 
proceeded with ; but nothing more is necessary, than that a motion 
should be made and a question proposed, it need not be actually 
debated. 



4. Efect of, after the Day assigned. 

1384. If, for any cause, an order of the day is not proceeded 
with on the day assigned, it becomes what is called a dropped 
order ; the subject of it is then in the same position that it was in 

1 If the motion does not prevail, the debate " Hatsell, II. Ill, n. 
proceeds as before. ^ Hans. (3), XVI. 463, 464, 465. 

46 



542 LEGISLATIVE ASSEMBLIES. [PaRT VL 

before the order was made ; and, if renewed at all, the proceeding 
must commence at that point.^ The most common cause of the 
order's dropping is that no house is formed on the day assigned, or 
that before proceeding with the orders, the house is adjourned for 
want of a quorum. Sometimes, the orders, or a part of them, drop 
for want of time to consider them ; but, in such a case, it is usual 
to discharge all that are not proceeded in, and to renew them for a 
future day. Where the orders drop for want of a quorum on the 
day assigned, it is not unusual to take them up on the next day, 
without any further notice, or any renewal of them ; though, in 
strictness, it would be necessary to commence the proceedings anew, 
at the point where they were at the time the orders were severally 
made.2 



5. Of the Effect of the Motion to postpone, according to Parlia- 
mentary Usage in this country. 

1385. By means of the system of orders of the day, which has 
been explained in the preceding paragraphs, the principal business 
of a legislative assembly may be, and that of the two houses of par- 
liament is, in fact, transacted. Business of every kind, when intro- 
duced, if not then entered upon, or completed, is postponed and 
made the order of the day for a future day ; orders of the day are 
proceeded with, and either completed or postponed to a future day ; 
orders not proceeded with are renewed, and dropped orders are 
revived, for a future day. In this round of proceeding, every thing 
is considered and disposed of in a legislative assembly, according 
to its wishes. In this country there are two forms of postpone- 
ment in common use, both of which are effected in a different 
manner from that employed in parliament, and one of which, in 
form, at least, is peculiar to our legislative assemblies. These are 
postponement to a day certain, and indefinite postponement. In 
parliament the first is effected by discharging the order for the con- 
sideration of a subject on one day and renewing it for another ; and 
the nearest proceeding to the second, which could take place 
according to the forms of parliament, would be to discharge the 

1 By a rule recently adopted in the house of general form, at the end of each day's proceed- 

commons, it is provided, that ." all dropped ings, that the orders of the day not disposed 

orders of the day are to be set down, in the of are continued to the next or some succeed- 

order book after the orders of the day for the ing day. 

next day on which the house shall sit;" and it 2 Parf. Reg. (2), XVIL 144; Same. LVII 

is frequently entered in the earlier journals of 202, 203. 
the hoixse of representatives of congress, in a 



Chap. V.] motions to commit. 543 

order for its consideration on a particular day without renewing it 
at all. The motions for indefinite postponement, and for postpone- 
ment to a particular day, are made, put to the question, and 
entered on the journal in that specific form. Instead of two 
motions, one to discharge and the other to renew the order, the 
motion is simple and direct, that the consideration, or further con- 
sideration (as the case may be) of the matter in question be post- 
poned to a particular day. A similar form is used when the 
motion to postpone indefinitely is made. Postponement to a day 
certain is attended here with the same effect as in parliament, 
except that when it is moved to postpone to a day beyond the 
legal duration of the assembly, the motion cannot be entertained as 
a motion for indefinite postponement, for such alone is its legal 
effect, but it is not in order.^ 

1386. The motion to postpone indefinitely is of American origin, 
and peculiar to the legislative assemblies of this country, in which 
it is used, as an adverse motion, to reject or suppress, and with the 
same effect.^ In the house of representatives in congress, it is pro- 
vided by a rule, that when a question is postponed indefinitely, it 
ehaU not be acted upon again at the same session. 



Section III. Of Motions to Commit. 

1387. One of the proceedings, made use of for the purpose, or in 
the course, of an orderly and appropriate disposition of a motion, 
was stated to be a commitment, or, in other words, a reference of 
the subject to a committee. The nature and functions, as well as 
the different kinds, of committees, and the manner in which they 
are appointed, will be treated of hereafter. In this place, it is suffi- 
cient to observe, that besides certain topics, which are required by 
standing rules or the established course of proceeding to be first 
considered by a committee, and which, therefore, when brought 
before the house by way of motion, must regularly be referred to a 
committee ; and, besides the commitment, which takes place as one 
stage of the proceedings in the passing of biUs ; it sometimes 
becomes necessary to refer a proposition to a committee, either for 
the purpose of further inquiry with regard to the subject-matter of 
it, or of some collateral subject, or for the purpose of putting the 
proposition into a more satisfactory form, or for the purpose of 

1 Cong. Globe, XXI. 1459, 1671. (.1. of H. V. 262); but is afterwards in coa- 

* This motion first occurs in the house of stant use. 
representatives in congress in the year 1806, 



544 LEGISLATIVE ASSEMBLIES. [PaRT VI. 

amendment in some particular, which cannot convenienily be 
effected by an amendment proposed and made in the house. K the 
subject has aheady been once in the hands of a committee, a sub- 
sequent reference of it, either |o the same or a different committee, 
is denominated a recommitment.^ 

1388. Where this form of proceeding is desired or requisite, it 
may be effected either by a simple reference of the motion or propo- 
sition to a committee, to be then or at some future time appointed ; 
or the proposition may be withdrawn for the purpose, and a motion 
substituted for the appointment of a committee on the subject ; ^ 
or a proposition for a committee may be moved as an amendment 
to the original proposition.^ Whatever may be the form of the 
proceedings, the subject so committed is disposed of until the report 
of the committee.* 



Section IV. Of Motions to Suppress. 

1389. When a motion is made and pending, which it is desirable 

to suppress for the time being, without coming to any decision upon 
it, either in the affirmative or negative, and \\dthout so far enter- 
taining it with favor, as to assign any time for its future considera- 
tion, this object may be effected in four different ways ; first, by an 
adjournment of the house ; second, by means of the previous ques- 
tion ; third, by proceeding to the orders of the day ; and fourth^ by 
means of an amendment. 



Auticle I. Adjournment. 

1390. As it always must necessarily be within the power of the 
house to bring its sittings to a close for the day, (for otherwise, it 
would seem that it might be kept sitting against its w\]\. and for an 
mdefinite time,) a motion to adjourn may be made at any time, 
with one exception, namely, when the question of adjournment 
has just previously been put and decided in the negative. K this 
motion, therefore, is made and seconded, whilst any other question 
is pending, it takes precedence of such question, and, if decided 
in the affirmative, that question is of coiu'se, interrupted and super- 
seded, without being decided either in the affirmative or nega- 
tive. 

1 Jefferson's Manual, Sec. XXVIII. * For references of bills see Pari. Eeg. 

s Hans. (2), I. 1050. XLIV. 422; Coram. Jour. LL 59; Pari. Keg. 

» Hans. (2), IV. 1409 ; Same, LXIV. 633. XLVH. 512; Comm. Jour. LIL 592. 



Chap. V.] motions to suppress, adjournment. 545 

1391. It being a rule, that when any matter of business is pend- 
ing, it must first be disposed of, before any other business can be 
undertaken, it follows, that, in order to entitle a motion for an 
adjournment to take precedence of any other question, it must be 
made simply to break up the sitting, and, therefore, in the simplest 
form, namely, "that this house do now adjourn." K made in any 
other form, as, to a particular day, or for any specified time, (in 
which case, it has some other purpose than merely to break up the 
sitting,) it wiU not take precedence of the question pending, and 
therefore cannot be put in that form, unless first moved as an 
amendment to the original question, and substituted therefor by 
the vote of the house. For the same reason, a motion simply to 
adjourn, if made as an independent motion, when any other ques- 
tion is pending, is not susceptible of amendment, by the addition 
of time or place, or in any other manner ; because, if so amended, 
it would then have some other purpose in view than to break up 
the sitting, and would consequently become irregular and disorderly 
as an independent motion. 

1392. The motion to adjourn simply ,i from its very nature, takes 
precedence of all other motions,^ though it is commonly provided 
by rule, in this country, that it shall have such precedence, and shall 
be decided without debate. In our practice this question is always 
in order, when the member who makes the motion is himself in a 
situation to make any motion, and may be taken by yeas and nays ; 
and a motion for that purpose is the only one, not even a question 
of order, or an appeal,'^ that can be allowed to intervene before the 
question is taken. 

1393. K the motion to adjourn is resolved in the affirmative, the 
pending question is thereby suppressed,* with all other business for 
the day, and removed from before the house, so that if renewed at 
all, it must be brought forward in the same manner as if it had 
never been before made ; if decided in the negative, the original 
question revives, and the debate is resumed at the point where it 
was interrupted by the motion to adjourn. 

1394. The question of adjournment being one, in which the 



1 It is not in order to reconsider a vote on a dency of a question of order, wliich a member, 

motion to adjourn. J. of H. 29th Cong. 1st in rightful possession of the floor, was inter- 

Sess. 1089. rupted to raise. Cong, Globe, in. 265. 

« A motion to aajoum is in order, after the ^ Cong. Globe, XXI. 384. 

assembly has voted, but before the decision ♦ This effect is usually counteracted in oaf 

has been announced. J. of H. 26th Cong. 1st practice by a special rule. 
Sess. 266. So it is in order, during the pen- 

46* 



•546 LEGISLATIVE ASSEMBLIES. [PaRT VI. 

element of time exists, so that a motion made to adjom-n at one 
time is not the same motion as a motion to adjourn made at 
another time, the question of adjournment may be moved repeatedly 
upon the same day; but, as there must be some lapse of time 
between the two motions in order to render them different, and this 
lapse of time can only be denoted by some parhamentary proceed- 
ing,^ for otherwise nothing would intervene to change the situation 
of the house, it is a rule that after a question of adjournment has 
been resolved in the negative, a second motion to adjourn cannot 
regularly be made, until some intermediate question has been pro- 
posed ; as, for example, suppose the pending question to be, that a 
particular bill be now^ read a second time, and the question of 
adjournment thereupon moved and negatived, a second motion to 
adjourn cannot be immediately made, but, if an amendment is first 
proposed, as to leave out the word " now," for the purpose of insert- 
ing " this day six months," the question of adjournment may then be 
moved. It is sufficient for the purpose, after one question has been 
put and carried against an adjournment, to move thereupon that an 
entry upon the journals (supposed relevant) be read, and then the 
question of adjournment may be repeated.^ 

1395. Li order to avoid any infringement of the rule above 
explained, it is a common practice in parKament, for those w~ho 
desire to avoid a decision upon the original question, on that day, 
to move alternately that " this house do now adjourn," and that 
" the debate be now adjourned." The latter motion, if carried, only 
defers the decision of the house, while the former supersedes the 
pending question altogether ; yet members, who only desue to 
enforce the continuance of the debate on another day, often vote 
for an adjournment of the house, which, if carried, would supersede 

1 The rule, as to the intervening business, the speaking of a member in debate, which 
the doing of -K-hich is necessary to the validity are quite sufficient for this purpose, are not 
of a second motion to adjourn, or of any other entered on the journal at all. The true test, 
motion, into which the element of time enters, undoubtedly, is, that if any parliamentary pro- 
after a former motion of the same sort has ceeding takes place, whether it is of a nature 
been decided in the negative, is commonly to be entered upon the journal or not, the 
expressed in the language above given; and second motion is regular; and that if the pro- 
it seems to be supposed, at least, in this coun- ceeding is not of a nature to go upon the jour- 
try, that, in order to constitute business of nal, or is a part only of another proceeding, 
this description, it must be such as would the clerk ought to enter it upon the journal, 
properly require to be entered on the journal, in order to show that the motion is regular. 
There can be no doubt that the occuiTence of - Hatsell, U. 109, n. ; Same, 2'19, and note ; 
any business, which is, in fact, entered upon J. of H. 27th Cong. 2d Sess. 774; Same, 31st 
the journal, is sufficient. But it is manifest Cong. 1st Sess. 1092; Cong. Globe, XXL 
that this is not the test; for the intervention 1347. 
of many matters of business, as, for example, 



Chap. V.] motions to suppress, adjournment. 547 

the question which they are prepared to support. This distinc- 
tion should always be borne in mind, lest a result should follow 
widely different from that anticipated. Suppose a question to be 
opposed by a majority, and that the minority are anxious for an 
adjournment of ihe debate; but that on the failure of a question 
proposed by them to 1hat effect, they vote for an adjournment of 
the house ; the majority have only to vote with them and carry 
the adjournment, Avhen the obnoxious question is disposed of 
at once, and its supporters have themselves contributed to its 
defeat.^ . 

1396. The house may also be adjourned, in the midst of a debate, 
or other proceeding, without any motion or vote for that purpose, 
whenever the number of members present falls below the number 
requisite to form a house, namely, forty in the commons, and three 
in the lords. When this happens, and notice is taken of the fact 
by the speaker or any member, or it becomes known to the house 
by the numbers on a division, the speaker must then immediately 
adjourn the house ; and an adjournment, caused in this manner, has 
the same effect of suppressing a question, as a formal question put 
and carried to adjourn.^ 

1397. The effect, which an adjournment of the house would have 
upon the question pending at the time, is counteracted to a great 
extent, if not altogether, in our legislative assemblies by a provision 
which is frequently inserted in the rules and orders of each, fhat the 
unfinished business in which the assembly was engaged at the 
time of its last adjournment, shaU have the precedence in the orders 
of the day. 



Article II. Orders of the Day, 

1398. In assigning its business for consideration on a future day, 
the house may either fix upon the day merely, or may also assign 
some particular hour on that day. In the former case, the whole 
of the day assigned is set apart for the consideration of the motion 
in question, but the particular part of it which may be taken for 
that purpose depends, in each case, upon the vote of the house. 



> May, 217, 218. must wait for a motion. In the mean time 

2 In those of the American legislative assem- business is suspended, but is renewed again 

blies in which a less number than a quorum on the appearance of a quorum. 

's authorized to adjourn, the presiding officer 



548 LEGISLATIVE ASSESIBLIES. [PaET VL 

Where the hour as well as the day is fixed, the speaker, on the 
arrival of that hour, interrupts all other business, and announces 
that fact to the assembly. He then waits for a motion, which is to 
a certain extent a privileged one, to proceed wdth the business thus 
assigned. The assignments of the first kind are called the order, or 
orders of the day ; the others are denominated special assignments 
or orders. 

1399. A subject or question, which, by an order of the house, 
has been assigned for consideration on a particular day, or, in other 
words, for the consideration of wMch a particular day has been 
assigned and set apart, is thereby so far made a privileged question 
for that day, that a motion to proceed to the consideration of it on 
that day is entitled to take precedence of and supersede any other 
question of the same nature.^ K, therefore, on a day assigned for 
the consideration of a particular subject, any other question is 
moved, a motion may be made for reading the order of the day ; 
and this motion will take precedence of, and must be decided before 
proceeding further with, the other. 

1400. If the motion is decided in the affirmative, the house pro- 
ceeds with the order of the day immediately, and the original ques- 
tion is accordingly superseded until after the order of the day has 
been disposed of, when it may again be moved ; if, in the negative, 
the original question revives, the order of the day is superseded, 
and as the subject of it cannot be proceeded with on that day, it is 
equivalent to a discharge of the order.^ 

1401. Where there are several orders of the day, the motion for 
reading them, in order to supersede a pending question, must be for 
reading the orders generally, and not for reading a particular order ; 
and, when the house is actually engaged upon one of the orders of 
the day, a motion for reading the orders generally is not admissible, 
for the purpose of suppressing the question under consideration, 
because the house is already doing that, which the motion, if carried, 
would oblige them to do.^ 

1402. This mode of suppressing a question cannot, of course, be 
resorted to, when there is no order of the day, or when the orders 
of the day have been all disposed of; but where there are several 
orders of the day, and some of them are disposed of, on separate 
motions, those remaining may be moved for as the orders of the 
day. 

1 A question of privilege or a special order - Pari. Reg. LXIV. 230. 
would supersede the order of the day. ' May, 218. 



Chap. V.] motions to suppress. 549 

1403. It should be observed, that an order of the day, although 
it generally specifies some particular thing to be done, with regard 
to the subject of it, is an authority for doing at the same time, 
whatever properly relates to the same subject.^ Thus, where there 
are several orders of the day, the first of which is for the commit- 
ment of a bill to a committee of the whole house, the house may 
not only go through the commitment of the bill, but may proceed 
to pass it, under the same authority, before proceeding to the next 
order of the day. 



Article III. Previous Question. 

1404. A third method of superseding and suppressing a questic n 
already proposed, is by moving what is called the previous questioi 
Any motion, which gives rise to a question previous in, its nature 
to another question to which it relates, may properly be denomi- 
nated a previous question, as, for example, a motion to amend, or 
to adjourn ; but this term previous, in parliamentary proceedings, 
has been long exclusively applied to a motion, which is intended to 
obtain a decision of the house, as to the propriety or expediency of 
then entertaining, or, in other words, of temporarily suppressing the 
subject or question to which it is applied. It is said to have been 
introduced for the purpose of suppressing subjects of a delicate 
nature, relating to high personages, or which might call forth obser- 
vations of a dangerous tendency. 

1405. Though this is the proper function of the motion for the 
previous question, and it belongs appropriately to the class of mo- 
tions used for the purpose of suppressing the subjects to which they 
are applied, and though it is still used principally for that purpose 
in the two houses of the British parliament, yet it has received so 
great an extension in legislative practice in this country, and is 
applied, for the most part, as we shall see hereafter, to such different 
purposes, that an adequate idea of this important portion of parlia- 
mentary machinery can scarcely be obtained, without treating sepa- 
rately and at some length, of the previous question, as used in the 
two houses of parliament, and as practised upon in the legislative 
assemblies of this country. 

1 J.of H. Vni. 502; Cong. Globe, XIII. 283. 



550 LEGISLATIVE ASSEMBLIES. [PaET VL 



1. Of the Previous Question according to the Common Parlia- 
mentary Law. 

1406. At the time when this motion first came into use, (some- 
thing more than t\vo hundred years ago,) it was the practice for the 
speaker to frame the questions, which were put to the house, from the 
turn of the debate, as well as to receive them from individual mem- 
bers. The state of the debate, which gave occasion to the putting 
of the previous question, and the nature of the motion itself, are 
thus described by Scobell, who wrote his treatise during this 
period : — " If, upon a debate, it be much controverted, and much 
be said against the question,^ any member may move that the ques- 
tion may be first made, whether that question shall be put, or, 
whether it shall now be put ; which, usually, is admitted at the 
instance of any member, especially if it be seconded and insisted 
on; and if that question being put, it pass in the afiirmative, then 
the maia question is to be put immediately, and no man may speak 
any thing further to it, either to add or alter." ^ 

1407. At the present day, the previous question is moved and 
seconded like any other motion, without regard to the state or turn 
of the debate. It differs, ho'wever, in this respect, from other mo- 
tions, that it is moved by the name which it bears, (the term pre- 
vious being now exclusively appropriated to it in parliamentary 
proceedings,) and not in the terms in which it is proposed to the 
house ; though there is no other reason than merely usage, why it 
should not be moved in the latter form. The motion usually made 
is the previous question ; the question stated and put to the house 
is, " that the main question be now put." 

1408. When this motion was first introduced, the question was 
put in this form, " that the main question be put ? " and, if resolved 
in the negative, the main question Vv^as suppressed, and could not 
again be moved for the whole session. The form of the question 
was afterwards changed (it is said on the suggestion of Sir Harry 
Vane) to that which it now bears, namely, " that the main ques- 
tion be noiv -^ put ? " and the operation of it, if resolved in the 
negative, is to suppress the main question for the day only. 

1409. The purpose of this motion being to suppress the ques- 

1 That is, against the subject or form of it. gested, was greatly to the advantage of the 

* Scobell, 27, 28. reformers of that day, and against the covut 

3 The insertion of this word into the terms party, 
of the question, by whomsoever it was sug- 



Chap. V.] motions to suppress. — previous question. 551 

fcion to which it is applied, by coming to a resolution or vote, that 
that question shall not be put, it would seem most appropriate that 
the question should be so framed, that a decision of it in the 
affirmative should produce the desired result. But this is not the 
case ; the terms of the question are so expressed, that the mover 
and those A^^ho vote with him vole against the motion ; and the 
motion is said, in common language, to be carried, though, in point 
of form, it has been decided in the negative. This apparent in- 
consistency results probably from the fact, that the question re- 
ceived its form at a time when it was not moved by a member, 
but framed by the speaker from the turn of the debate. 

1410. If the previous question is decic^d in the negative, namely, 
that the main question shall not now be put, the effect of this de- 
cision is, that the same question cannot be moved again the same 
day, but may be on any subsequent day. If the question is mate- 
rially changed, so as to become in fact a different question, it may 
be moved again the same day ; but, if altered in form or words 
only, without being essentially and substantially altered in matter, 
it cannot be moved until a subsequent day.^ The suppression of a 
question for the day, by means of the previous question, seems to 
result from the general principle, that an order of the house can- 
not be rescinded or discharged on the day on which it is made. 

1411. It seems that a motion is to be deemed the same as one 
already suppressed by the previous question provided it was a part 
of and included in the motion so suppressed; thus, a motion hav- 
ing been made in the house of commons that a message be sent to 
the lords, deshing that leave should be given to three of the 
lords, naming them, to attend and be examined as witnesses be- 
fore a committee of the house of commons, which motion was sup- 
pressed by the previous question ; and a similar motion being 
then made for a message in similar form, desiring the attendance 
of one of the lords named, the speaker. Sir John Cust, said, " that 
f*s the house had determined not to put the question on aU the 
three lords, it would be disorderly to put it on one singly." ^ 

1412. If the previous question is moved and carried in the 
negative, confessedly for the purpose of introducing the same (main) 
queslion, with essential alterations and amendments, the moving of 
such new and amended question does not seem to be irregular : 
because the rule of not putting again a question against which the 
previous question has been carried in the negative, must always 

» Hatsell, II. 116. 2 Cav, Deb. I. 81, 82. 



552 LEGISLATIVE ASSEMBLIES. [PaET VL 

be exjjlained, in the obserTance of it, by the nature and turn of the 
debate, and the sense which the house puts on the word " now," 
in their arguments upon the previous question.^ 

1413. If the previous question is resolved in the affirmative, no 
alteration of the main question can then take place by way of 
amendment, nor can any further debate be suffered to inter\^ene ; 
but the main question must be put immediately and in its exist- 
ing form.- The previous question may be suppressed by an ad- 
journment of the assembly.^ 

1414. The previous question cannot be put upon an amend- 
ment,^ because the question on the amendment being that certain 
words be inserted or added, or, that certain words stand part of the 
question, the decision of this question only determines that the 
words of the motion shall or shall not be added, inserted, or stand 
in that particular place, and has therefore all the effect of a previous 
question.'^ 

1415. Nor can the previous question be put upon any of the 
other merely subsidiary motions which are used like the previous 
question itseK for the suppression of other original motions. Thus 
it cannot be apphed to the motions to postpone or to commit, or 
that a motion be ordered to he on the table. Nor on the other 
hand, can any of these motions be put upon the motion for the 
previous question.^ 

1416. It has been held, that the previous question was improper 
in a question of privilege ; as, in the case of jNIr. Wilkes, whose 
petition ha\4ng been presented, complaining of his detention in the 
king's bench prison, notwithstanding he had been elected a member 
of the house of commons, a motion was made, that it do lie on 
the table, and it being suggested that this motion might be sup- 
pressed by the previous question, it Tvas said by leading members 
at once, and not denied, that such a course would be irregular." 

1417. When a question has been moved and seconded, and pro- 
posed from the chair, and the previous question has been moved 
and seconded and also stated from the chair, it is not in order 



iHans. (3), LXIY. 261; HatseU, XL 124. ? Cav. Deb.L 48. It has been decided in the 

2 Hatsell, II. 122 and note; Lex. Pari. 292. house of representatives of the United States, 

2 May, R. 0. etc. 124. that the previous question is as much appli- 

* Comm. Jour. XXXII. 834; J. of S. HI. cable to a personal charge against a member, 
87; J. of H. ^^. 61. as to any other question. Cong. Globe, Vm. 

5 Hatsell, n. 116. 532; Same, XL 345; Same, XIIL 578; Same. 

• Jefferson's Manual, Sec. XXXHI. XYH. 359, 360. 



CiLAP. v.] MOTIONS TO SUPPRESS. PREVIOUS QUESTION. 553 

then to move to amend the main question, without first withdraw- 
ing the previous question.^ 

1418. The effect, therefore, according to the common parlia- 
mentary law, of moving the previous question is threefold : firsts 
as soon as it is moved and seconded and proposed from the chair, 
no other motion relating to the main question is admissible, unless 
the previous question is first withdrawn ; second^ if resolved in the 
negative, the main question, both in substance and form, is sup- 
pressed for the day, which is ordinarily considered as equivalent to 
a defeat ; and third, if resolved in the affirmative, the main ques- 
tion must then be put immediately, without further debate, amend- 
ment, or delay. In the mean time, the debate is continued as 
before. Hence, it happens that, when the previous question is 
moved and seconded, the adversaries of the measure, instead of 
being confined in the debate to its merits, as would otherwise be 
the case, have the advantage of all objections which can be urged 
against the proposition itself, against the time when it is brought 
forward, and against the form in which it is moved ; and this 
is an advantage of which they cannot be deprived, so long as a 
single member objects to the withdrawal of the previous ques- 
tion.^ In our legislative assemblies the merits of the main ques- 
tion are not allowed to be discussed, on the motion for the pre- 
vious question. 

1419. The peculiar character of this motion has caused it to be 
variously characterized, according to the temper and disposition of 
members, and its operation upon motions in which they were in- 
terested. On the one hand, it has been called " a sort of parlia- 
mentary trick," 2 " a mere subterfuge to evade the material ques- 
tion," ^ and the member moving it has been charged with " skulking 
behind a previous question." ^ On the other hand, it has been 
considered as a very proper proceeding for the disposition of a 
question, to which members " could neither give a direct affu-ma- 
tive or negative ; " ^ Lord Chancellor Loughborough said of it, that 
the real meaning of the previous question was, " that when a mo- 

1 Hatsell, IT. 122. In Hans. (1), II. 557, Mr. Speaker Abbott 

'^ In parliamentary language, the previous said, " that it was only in the case of an 

question is said to be carried when it is de- amendment by the previous question, that 

cided in the negative; the object of the mover the rejection of the amendment precluded 

and of those who vote with him, being to sup- further debate." 

press the main question. The tei-m amend- ^ Coram. Deb. VIII. 43, 44. 

tntnt is sometimes iised to signify a motion * Pari. Reg. XXXIX. 192, 193- 

■which takes precedence of and. supersedes ^ Pari. Keg. (2), X. 27. 

another, as, for example, a motion to adjourn. » Pari. Reg. XI. 332. 

47 



554 LEGISLATIVE ASSEMBLIES. [PaET VL 

tion was made that was not fit for discussion, the previous ques- 
tion was moved to get rid of it altogether, and prevent alterca- 
tion upon a subject that did not admit of argument ; " ^ Mr. Fox 
gave it as his opinion, " that when the house did not approve of a 
proposition, or did not wish to go immediately into it, nothing 
was more proper than to move the previous question, which did 
not preclude a subsequent discussion of the same subject, if any 
member should think it necessary to bring it forward ; " ^ and ]\Ir. 
Grey said, " that the adoption of the previous question was noth- 
ing more than a postponement of the debate, and did not by any 
means preclude the house from subsequently taking any step in 
the same question which they might think expedient." ^ 

1420. But the previous question may be decided in the affirma- 
tive, as well as in the negative, that is, that the main question shall 
now be put ; in v»^hich case, that question is to be put immediately, 
without any further debate, and in the form in which it then exists. 
This operation of the previous question, when decided affirmatively, 
has led to the use of it for the purpose of suppressing debate on a 
prmcipal question, and coming to a vote upon it immediately ; and 
this is ordinarily the only object of the previous question, as made 
use of in the legislative assemblies of the United States.^ The 
operation of a negative decision is different in different assemblies ; 
in some, as for example, in the house of representatives of congress, 
it operates to dispose of the principal or main question by suppress- 
ing or removing it from before the house for the day ; but in others, 
as in the house of representatives of Massachusetts, and in the 
house of assembly of New York, (in the former by usage only, and 
in the latter by a rule,) the effect of a negative decision of the pre- 
vious question is to leave the main question under debate for the 
residue of the sitting, unless sooner disposed of, by taking the ques- 
tion, or in some other manner. 

1 Pari. Reg. XXXIX. 192, 193. mentary forms, and therefore it should not be 

2 Pari. Re". LV. 641. favored, but restricted within as narrow limits 
' Pari. Reg. LV. 641. as possible.'' Notwithstanding this sugges- 
* Mr. Jefferson (Manual, § 34) considers this tion, however, the use of the previous ques- 

extension of the previous question as an abuse, tion, as above stated, has become so firmly 
He is of opinion, that "its uses would be as established, that it cannot now ^e disturbed 
well answered by other more simple parlia- or unsettled. 



Chap. V.] motions to suppress. — previous question. 555 

2. Of the Previous Question as used by Legislative Assemblies 
in the United States. 

1421. In the legislative assemblies of the United States, while 
the parliamentary character of this motion has been recognized in 
theory, as stated in the preceding paragraphs, it has been practi- 
cally turned to a very different purpose, and has been used for 
many years past principally for the suppression of debate, on the 
topic under discussion. In the earlier history of our legislative 
assemblies, and down to the present century, the previous question 
was made use of for its legitimate parliamentary purpose of sup- 
pressing those subjects upon which the assembly did not wish to 
come to a direct vote. But while this object could be effected as 
well by various other motions, which were in constant use, there 
was one purpose equally if not more desirable, that of stopping 
debate, which the peculiar character of the motion for the previous 
question enabled it alone of aU the parliamentary motions in use 
to accomplish. This motion has accordingly been laid hold of and 
used almost exclusively for this purpose in most of our legislative 
bodies since the commencement of the present century. But this 
practice, though very general, has not been universal. Thus the 
previous question was in common use in the congress of the con- 
federation, and from that body it descended to the two houses of 
congress under the constitution ; but in the two branches of that 
body, it has met with a different fate ; in the senate of the United 
States, after being used a considerable time for its parliamentary 
pm-pose, it has been abolished altogether for many years,^ while on 
the other hand in the house of representatives, it has gradually 
assumed and been adapted to its present character, of a motion foiE 
stopping debate. 

1422. The parliamentary form of the motion has been preserved, 
notwithstanding its awkwardness, and the apparent incongruity of 
requiring those who are in its favor to vote against it. In the 
congress of the confederation, a remedy for the inconvenience seems 
to have been attempted by rule ; that body having adopted in 1778, 
among their rules and orders, the following, namely : " The previous 
question (that is, that the main question be not now put) being 

1 The rules and orders of the senate of the previous question is not among them. See 

United States contain a rule, prescribing all also J. of S. 31st Cong. 1st Sess. 482; Cong, 

the different motions which may be applied to Globe, XV. 553. 
a subject under debate, but the motion for the 



556 LEGISLATIVE ASSEMBLIES. [PaRT VI. 

moved, the question from the chair shall be, that those who aro for 
the previous question say aye^ and those against it no, and if there be 
a majority of ayes, the main question shaU not be then put, but 
otherwise it shall." In the rules and orders of the house of represent- 
atives of the United States, and the provision appears to be copied 
frequently in the rules and orders of other legislative assemblies, 
the form of the pre^dous question is fixed as it now prevails in par- 
liament. In this form, those who are in favor of the motion obtain 
their object by an affirmative vote. 

1423. In this country, the motion for the previous question is 
regulated in t^^o somewhat different manners ; ^ first by the com- 
mon parliamentary law, as stated in the preceding paragraphs; 
and secondly, by the same law, as variously modified to a greater 
or less extent by the rules of each particular assembly. The com- 
mon parliamentary law is the rule of each assembly, until it adopts 
rules of its own, and when they are adopted, it prevails in aU 
respects m which they are deficient.^ Li order to make this impor- 
tant proceeding intelligible, it is proposed in the first place to 
recapitulate, briefly, the rules which govern this subject, when it is 
regulated only by the common parliamentary law, and secondly to 
state more at length the practice which prevails, in the use of the 
previous question, in the house of representatives of the United 
States. The rules, which from time to time have been adopted in 
this assembly, having been extensively copied into the rules of other 
assemblies, it is probable, that a statement of the former will 
embrace all the particulars in which the practice of legislative 
assemblies in this country is different firom the common parfia- 
mentary law. 

1424. According to the common parliamentary law, the motion 
for the previous question may be made, to suppress any other origi- 
nal motion, but it cannot be put upon an amendment or any of the 
merely subsidiary motions, as to commit or postpone. It is subject 
to the same rules with other motions, and is moved, seconded, and 
stated from the chair, in the same manner. When stated as a 
question, it may be debated like any other, but the merits of the 
main question, are not in strictness open. If decided in the nega- 
tive, the decision precludes the taking of the same or any similar 
question, the same day ; if decided in the affirmative, the main, or 
principal question is then to be immediately put, without any 
further debate, alteration, or delay. 

1 J. of H. 26tl: Cong. 1st Sess. 88; Reg. of "■ Cong. Globe, XXIII. 542. 

Deb. S. Part 3, 3473 ; Cong. Globe, VUI. 65. 



Chap. V.] motions to suppress. — previous question. 557 

1425. The peciiliar operation of this proceeding, in the lower | ^ 
house of congress, depends principally upon the rule of that body- 
relating to the order and precedence of motions, and upon the rules 
relating to this motion in particular. The latter will be- stated as 
they occur. The former is as follows : — " When a question is under 
debate, no motion shall be received, but to adjourn, to lie on the 
table, for the previous question, to postpone to a day certain, to 
commit or amend, to postpone indefinitely ; which several motions 
shall have precedence in the order in which they are arranged." 

1426. The word question, in this rule, refers only to original 
questions, and not to questions of amendment ^ or merely subsid- 
iary motions which may be suppressed by various other means, 
but to which the previous question is not applicable ; and a subject 
is held to be sufficiently under debate to come within the operation 
of the rule, when it has been stated from the chair as a question 
for the decision of the house ; but a practice also prevails, which is 
contrary both to the spirit and letter of the rule ; this practice con- 
sists in allowing the mover of an original proposition, to which the 
previous question is applicable, to accompany it, in the same 
breath, and before it is stated from the chair, with a motion for the 
previous question. This anomalous and unparliamentary proceed- 
ing has been frequently called in question, and as frequently sus- 
tained on the ground of usage and convenience.^ 

1427. The previous question is put in its parliamentary form, 
namely, " Shall the main question be now put," which is also 
prescribed by a rule of the house. It cannot, therefore, be moved 
or stated in any other form ; nor does it admit of any amendment. 
Parliamentary usage, as well as the rule above mentioned, both 
confine the motion to the present time.-^ 

1428. When the previous question is moved, it then becomes 
the duty of the speaker to ascertain whether it is seconded or not 
by the requisite number of members.'^ This number, which was 
first fixed, and so remained for many years, at one fifth of the J 
members present, is now fixed at a majority of those present. If 

the speaker ascertains that the requisite number is in favor of 
putting the motion, and on this question the yeas and nays are not 



1 See ante, § 1414. operation; but the validity of the motion in 

« See ante, § 1284, note. this form was not objected to. Cong. Globe, 

9 Jefferson's Manual, Sec. XXXIII. It ap- XV. 456. 

pears that the previous question has been * Cong. Globe, XI. 799. 

moved, excepting certain individuals from its 

47* 



558 LEGISLATIVE ASSEMBLIES. [PaRT VI, 

admissible,^ it then becomes the duty of the speaker to take the 
sense of the house upon the question. The number necessary to 
second this motion is attended with this convenience, that, inas- 
much as the motion cannot be put unless a majority of the mem- 
bers present is in its favor, there is but Httle danger of a negative 
decision of the previous question itself.^ "When the previous ques- 
tion is moved, the speaker immediately proceeds to ascertain 
whether it is seconded, and if so, to put it to the house ; unless he 
is interrupted by some question claiming precedence, such, for 
example, as the motion to adjourn, or to lie on the table, or to 
reconsider ; ^ in which case the proceedings on the previous question 
are suspended altogether, by a decision of it in the affirmative, or 
for the time only during which it is pending, if decided in the nega- 
tive ; if interrupted by an incidental question, the proceedings on 
the previous question revive, as soon as the former is disposed of, 
whether decided in the affirm.ative or negative. The incidental 
motions, which most usually intervene to suspend proceedings on 
the previous question, are for reconsideration, which, it is declared, 
j by a rule of the house " shall have precedence of all other questions, 
X^ except a motion to adjourn." The motion for the previous ques- 
tion, being moved, seconded, and stated from the chair, was, until 
1805, debatable within narrow limits, that is to say, as to the expe- 
diency or propriety of putting it, without opening the merits of the 
main question, but since that year, debate has not been allowable 
on the previous question, and by a rule more recently made, 
" aU incidental questions of order, arising after a motion for 
the previous question, and pending such motion, shaU be 
decided, whether on appeal or otherwise, without debate." The 
prohibition of debate is so strictly observed, that, when the pre- 
vious question is pending, it is not even allowable to caU for the 
'■ reading of a document, relating, as, for example, the report of a 
\ committee,* to the principal question, and which would otherwise 
come within the rule as to the reading of papers; and the only 
exception it admits is, that where the measure under consideration 

1 J. of H. 19th Cong. 2d Sess. 254; Cong. s Cong. Globe, VIIL 446, 447; Same, XI. 

Globe, XX. 264; Same, XXI. 1568. This ques- 783. 

tion cannot be reconsidered by itself; Cong. * J. of H. 23d Cong. 1st Sess. 726 ; Same, 

Globe, IV. 235; but is reconsidered when the 27th Cong. 1st Sess. 1002; Same, 29th Cong, 

motion for the previous question is so ; Cong. 2d Sess. 547 ; Reg. of Deb. X. Part 4, 4435, 

Globe, XII. 38. See also Cong. Globe, IV. 206^ Same, XIII 

" It has sometimes happened, that the pre- 107 
vious question has been seconded by a major- 
ity, but not ordered. 



ClIAP. v.] MOTIONS TO SUPPRESS. — PREVIOUS QUESTION. 559 

is reported from a committee, the member reporting the measure is 
allowed to open and close the debate, according to the rule in his 
favor, notwithstanding the pendency of the previous question.^ 

1429. When the previous question is called or moved, it, at once, c"" 
supersedes and cuts off all motions then made, which stand subse- - 
quent to it on the list above mentioned, and prevents their being ) 
made in future, provided the motion is seconded. If Ihere is no 
second, the motions then pending revive, or they may be moved, as 
before. If the motion for the previous question is seconded by the\ 
requisite number, it is immediately to be put to the house. \ 

1430. If the previous question passes in the negative, the effect 
of the decision is the postponement of the main question from that 
to the next sitting day, or to a day or time when such business is 
again in order; when the subject again comes, or is brought up, 
the motion for the previous question is still the pending question, 
and must be again put to the house, and so on as often as the 
decision is in the negative.^ 

1431. The first effect of a decision of the previous question in 
the affirmative, namely, that the main question be now put, is, that 
the main question is to be taken as it then stands, without any 
further amendment,^ debate,"^ or delay, the motions for which are 
no longer in order. This last proposition admits of two exceptions 
in practice, which are contrary to the spirit if not the letter of the 
rule first above mentioned, namely, the main question may then be 
further postponed by being laid on the table,^ or by an adjourn- 
ment,^ and is immediately to be put when the subject is again 
before the house, but in no other way can the question be post- 
poned. 

1432. The principal effect of a decision of the previous question 
in the affirmative is, that the house is thereby brought to a direct 
vote, first, upon certain enumerated motions, if then pending, and 
secondly, upon the main or principal question. These enumerated 
motions are ; 1. A motion to commit, which may be either to com- 
mit, or to recommit, and with or without instructions ; 2. If the 

1 Cong. Globe, XI. 250. debated, after the previous question had been 

2 J. of H. 27th Cong. 3d Sess. 12. decided in the affirmative. 

8 J. of H. IX. 75; Same, 26th Cong. 1st ^ j. of H. 30th Cong. 1st Sess. 175; Cong. 

Sess. 1296. Globe, XIII. 332. See Cong. Globe, IX. 174, 

* J. of H. VII. 611. This was decided 175. 

in 1811; the house had previously decided, « Cong. Globe, XIII. 349. In parliament, 

in 1807 and again in 1808, on the former oc- an adjournment is admissible after the pre- 

tasion, reversing the decision of Mr. Speaker vious question has been affirmed. May, R. 

Vamum, that the main question might be 0. etc. 124. 



560 LEGISLATIVE ASSEMBLIES. [PaRT "V L 

motion to commit does not prevail, then amendments previously 
reported by a committee, and pending amendments, that is, amend- 
ments which have been moved during the debate. Motions to 
amend the amendments belong to the same class of motions 
with the amendments themselves, and are put to the question 
accordingly. When the question has been put upon these motions, 
or such of them as are pending, it is then to be put ^ upon the main 
question. 

1433. The previous question being general in its form, " Shall 
the main question be now put," without specifying the subjects to 
which it is applicable, it often becomes important where several 
questions are connected with the same subject-matter, to know 
what intermediate questions are cleared off by it, and what is, in 
point of fact, the main question. Ordinarily the first question moved 
or presented on a given subject is the main question ; and where 
there are no debatable questions, there can seldom be any doubt on 
this subject; so when the subject under consideration is one, which 
passes through regular stages, the main question is always that 
which, if it passes in the affirmative, will carry the subject of it 
forward to its next regular stage, whatever may be the first motion 
or other question made in reference to it. Thus, where a biU, having 
been read a second time, is before the house for consideration, the 
main question is on committing it to a committee of the whole 
house, if it ought to be committed to that committee, whether any 
motion is made to that elTect or not, and whatever other intermediate 
question there may be pending, otherwise the main question is on 
the engrossment and third reading of the bill; so where a bill, 
having been engrossed, and read a third time, is before the house 
for consideration, the main question is on its passing ; so where a 
bih having passed, the title is announced, the main question is on 
agreeing to the title. In all other cases, the first question moved is 
generally the main question ; these questions may all be divided, if 
the same will admit of division. 

1434. The previous question, like other motions, may be vidth- 
drawn by the mover, and may be reconsidered,"- but it cannot be 
withdrawn after it has been seconded, mthout the vote of a majority 
of the house ; ^ and it cannot be reconsidered while it is in the 
course of execution, that is to say, after the house has begun to 

1 J. of H. 27th Cong. 1st Sess. 244, 245, 246, 2 Cong. Globe, XH. 38; Same, XXL 381; 
247, 248, 249; Cong. Globe, XX. 582. Same, XIII. 501. 

3 J. of H. 21st Cong. 2d Sess. 252. 



Chap. V.] motions to suppress. — amendment. 561 

take, and while it is in the course of taking, the different classes of 
questions above mentioned, aU of which collectively are sometimes 
said to constitute the main question. 

1435. The operation of the previous question lasts Only until 
the questions above mentioned, including the main question, have 
been taken, and does not extend to the next stage in the progress 
of the same measure. Thus, if a bill, which has been read a 
second time, is under consideration, and the previous question is 
moved, the main question is on ordering the bill to be read a third 
time, and when that question is taken and decided, the previous 
question ceases to operate, even though the bill should be carried 
forward immediately through its remaining stages. K desired, the 
previous question must be renewed at every one of the stages of 
the bill. So, when a motion to reconsider is taken under the opera- 
tion of the previous question, and is decided in the affirmative, the 
previous question has no operation upon the question to be recon- 
sidered ; if the influence of the previous question is desired on that 
question, it must be moved again. 

1436. After the previous question has been moved, the main 
question may be withdrawn by the mover, in the same manner as 
if the previous question had not been moved, at any time before a 
decision or amendment, but it cannot be modified, after the previous 
question has been decided in the affirmative.^ 



Article IV. Amendment. 

1437. It has already been seen in treating of the subject of 
amendments, that this form of proceeding, unless restricted by a 
special rule, may be adopted, not only for the purpose of carrying 
out and effecting the object of a proposition, by improving the 
terms in which it is expressed, but also of defeating it, by changing 
it into a proposition of a different character, or by substituting 
another and a different proposition in its place. When an amend- 
ment of this description is moved, it may be regarded as a mo- 
tion to suppress, whether that be the primary or principal object of 
the motion or not, because, if it is agreed to, it is clear that the 
original or main question is suppressed without any opinion being 
expressed upon it, further than as it may be negatived or other- 
wise qualified by the proceedings on the amended question. 
Amendments of this kind may be made in any of the forms by 

1 Cone;. Globe, XI. 471. 



CQ2 LEGISLATIVE ASSEMBLIES. [PaET VI. 

which amendments are usually made, as by leaving out, by insert- 
ing, or adding, or by leaving out and inserting, according to the 
form of the proposition, and the natm-e of the amendment pro- 
posed. 

1438. Amendments for the purpose of defeating and thus sup- 
pressing a motion are of three kinds, j^rs^, those by which a proposi- 
tion relating to a different subject is substituted for the one origi- 
nally m_oved ; second, those by which the original proposition is 
rendered so absurd and ridiculous, or so changed in meaning, or so 
impracticable, that it is at once rejected by the votes of all parties ; 
and, third, those by which the original proposition is reversed, or 
changed into its opposite, and in that form adopted. 

1439. An example of the first form occurs, when, on a motion 
that a particular order of the day be read, an amendment is pro- 
posed by leaving out all the words of the motion except the word 
" that " at the beginning, and substituting therefor a motion that 
some other order of the day be read. Examples of the second 
and third forms have already been given. 

1440. Where a question w^as so altered by amendments, as to 
bear a sense different from what the mover intended, the house of 
commons gave leave, that in this instance only, the common form 
of the entry should be altered ; a memorandum being also made of 
the reasons, in order to prevent the proceeding from being drawn 
into a precedent, in a case where the same reasons should not 
exist.i 



CHAPTER SIXTH. 

OF THE ORDEE, SUCCESSION, AOT) PRECEDENCE OE MOTIONS. 

1441. It is a general rule, relating to parliamentary proceedings, 
that, when a question is regularly before the house, for its consid- 
eration, upon a motion duly made and seconded and proposed 
from the chair, that question must be forthwith disposed of, either 
for the time or permanently ; and that until such disposition of it, 
no other motion or question can regularly be made or arise so as 

1 HatseU, H. 118. 



Chap. VL] order of motions. 563 

to take the place of the former and be first acted upon, unless it 
is either, first, a motion relating to and connected with the preced- 
ing question, and intended for the purpose of disposing of that 
question, or of assisting the house in its consideration ; or, secondly, 
a motion relating to and connected with some subject which is 
deemed to be of paramount importance ; or, thirdly, a motion re- 
lating to the general course and order of proceeding. 

1442. AU these different kinds of motions take the place of the 
principal motion or main question, as it is sometimes called, and 
are to be first put to the question ; and, among ihemselves, also, 
there are some which, in like manner, take the place of all the 
others. Some of these questions merely supersede or take the 
place of the principal question, until they have been decided ; and, 
when decided, whether affirmatively or negatively, leave that ques- 
tion as before. Others of them also supersede the principal ques- 
tion until they are decided ; and, when decided one way, dispose 
of the principal question ; but, if decided the other way, leave it 
as before. These several motions will now be stated, and the re- 
lation which they bear to the principal question and to one another 
explained, in the first three of the succeeding sections ; to which is 
added di fourth concerning the order, succession, and precedence of 
motions as established by rule in this country. A fifth, concerning 
the general course and order of business in a legislative assembly, 
will conclude the first division of this part. 



Section I. Of Motions relating to and connected with the 
Question pending. 

1443. Motions coming under this head are of two kinds, namely, 
first, subsidiary, or, as they may also be called, secondary, by which 
terms are denoted those motions which are made use of to dispose 
of a principal motion or question, either for the time being, or 
permanently, in the manner most consonant to the wishes of the 
house ; and second, by incidental motions or questions which arise 
out of, or occur in consequence of the pendency of, some other ques- 
tion, which, xo them, stands in the relation of, a principal question. 

Article I. Subsidiary Question. 

1444. The subsidiary or secondary motions in conunon use are 
the following, namely, to amend, to commit, for the previous ques- 



564 LEGISLATIVE ASSEMBLIES. [PaET VI. 

tion, to lie on the table, and for postponement, all of which, except 
the motion to lie on the table, have been previously considered. 

1445. Motions to amend, being previous in their nature to the 
motion or question which it is proposed to amend, take precedence 
of or supersede that question ; because, in whatever form the nature 
of the amendment may require the question to be taken, the sub- 
stantial question jBrst decided is, \\'hether the motion in its original 
form, or as amended, shah be the question before the house, and 
not whether the original motion shall be adopted. 

1446. Motions to commit, or if the subject has already been in 
the hands of a committee, to recommit, whether moved as amend- 
ments, or as independent motions, equally take precedence of the 
motions to which they are applied. In the latter case, also, they 
miay be moved after and take precedence of motions to amend ; ^ 
but the motion to commit, if decided in the negative, cannot be 
renewed. 

1447. Motions to postpone, both indefinitely and to a day certain, 
whether moved as amendments, or in the form of an adjournment 
of the debate, take precedence of the motions to which they relate. 
Motions to postpone, as well as to commit, like other motions, 
cannot be made a second time.^ The subject can only be reached 
again, if at all, by a motion to reconsider.^ 

1448. The previous question also takes precedence of the ques- 
tion upon which it is moved. This motion has already been con- 
sidered, both according to the common parhamentary law, and ac- 
cording to the "usual practice upon it in this country. In neither 
case can it be moved a second time, in reference to the same sub- 
ject. TVhere reconsideration is allowable, the motion for the pre- 
vious question may, whether decided in the affirmative or negative, 
be reconsidered. 

1449. The motion to lie on the table is a subsidiary motion, 
which supersedes and disposes of the motion to which it is applied 
for the time being. It may specify the time, or be expressed in 
general terms.^ In the former case, if the motion prevails, the 
subject of it is disposed of for the time specified; in the latter, for 
the day only on which the order is made.-^ This motion is proper 
when the assembly has something else before it which claims its 
present attention, but is willing to reser\-e to itself the power of 

1 Jefferson's Manual, Sec. XXXEU.; Sco- * J. of C. X. 160: J. of H. Yl. 477; Samey 
belJ, 46. Vm. 353 ; Ann. of Cong. I. 791. 

2 Cong. Globe, XVIH. 382, 383. s Hans. (1), XYH. 318. 
» Cong. Globe, XX. 517. 



Chap. VL] subsidiakt motions. — lie oisr the table. 565 

proceeding to consider the subject at a more convenient oppor- 
tunity.i In general, whatever adheres to the subject of this 
motion, goes on the table with it, as, for example, where a motion 
to amend is ordered to lie on the table, the subject, which it is 
proposed to amend, goes ihere with it. But this rule does not 
apply to propositions which are independent of 1he motion laid on 
the table, though connected with it ; thus, where a motion to amend 
the journal,- or the question on the reception of a petition,-^ or a 
motion to reconsider^ a vote by which a bill has been passed 
through one of its stages, or an appeal from the decision of the 
presiding officer on a question of order, is laid on the table, 
neither the journal, nor the petition, nor the bill, nor the question of 
order, goes on the table with the motion to amend, or to reconsider, 
or the appeal ; the journal stands as if no motion to correct it had 
been made ; the bill may pass through its remaining stages ; the 
petition is not thereby received ; and the decision of the presiding offi- 
cer stands as the decision of the house. According to the practice 
of legislative assemblies in this country, a motion laid on the table 
may be proceeded with at any time, even on the same day on 
which the order is made. 

1450. A distinction is to be made betAveen the speaker's table 
and the table of the house. The latter only is the subject of the 
order in question, to lie on the table. Whatever is under the pres- 
ent consideration of the assembly, or may be so, whenever it is 
proceeded with, is on the speaker's table.^ 

1451. This motion, if decided in the negative, may be renewed, 
whenever any new business intervenes,*^ or when the motion is, in 
the mean time, so changed, by modification or amendment, as to 
become a different one ; ' if decided in the affirmative, the subject 
is thereby disposed of, for the time being, and can only be brought 
before the assembly again by moving to rescind or discharge, or to 
proceed with the consideration of the subject, or by motion to re- 
consider. 

1452. All these motions, except the motion to adjourn the debate, 
being equal among themselves, when any one of them is regularly 
moved, seconded, and proposed from the chair, no one of the others 

1 Jefferson's Manual, Sec. XXXHL s Cong. Globe, XXI. 1019. 

2 J. of H. 26th Cong. 1st Sess. 28. « J. of H. 32d Cong. 2d Sess. 234 ; Reg. of 

3 Cong. Globe, IV. 7980; Same, VH. 47. Deb. XIL Part 2, 2179; Cong. Globe, VL 355; 
* See the journals of the house of represent- Same, XIL 387; Same, XV. 479. 

atives in congress, passim. But see Cong. ' J. of H. 30th Cong. 1st Sess. 250, 251. 252. 

Globe, III. 244. 

48 



566 LEGISLATIVE ASSEMBLIES. [PaRT VL 

can be regularly moved until the fiist is disposed of or withdrawn. 
The motion to adjourn the debate may be made whUe any of the 
others is pending; and, if resolved in the affirmative, the main 
question and aU other pending questions connected with it are ad- 
journed accordingly. The same result as to pending motions fol- 
lows from a postponement in any form, whether it takes place 
specifically or in consequence of some other proceeding, as, for ex- 
ample, an adjournment of the assembly or lapse of time. 

1453. It is a general rule, ^vith certain exceptions which will be 
immediately mentioned, ihat subsidiary or secondary motions can- 
not be applied to one another; as, for example, if a motion to 
amend, commit, or postpone a principal question is moved, the 
previous question cannot be made use of to suppress that motion ; 
or, if the previous question is moved, it cannot be moved to post- 
pone, commit, or amend, that motion.^ The reasons for this rule 
are ; 1. It would be absurd to separate the appendage fi-om its 
principal ; 2. It would be a piling of questions one on another, 
which, to avoid embarrassment, is not allowed ; 3. The same re- 
sult may be reached more simply by negativing the motion which 
it is thus attempted to dispose of by another secondary motion ; 
and, 4. None of the reasons, which sometimes render it deskable to 
get rid of a question without deciding it, can ever apply to any of 
these merely formal motions.^ 

1454. The exceptions to the rule are, that motions to commit, 
amend, and postpone, may be amended, for the reason, (as stated 
by Mr. Jefferson,) " that the useful character of amendment gives 
it a privilege of attaching itself to a secondary and privileged mo- 
tion ; " and, consequently, where such effect can be obtained by 
means of an amendment, any of the preceding motions may be dis- 
posed of by way of amendment. A motion to commit may be 
amended by the addition of instructions ; motions to amend may be 
variously amended, and motions for postponement may be amended 



1 It has accordingly been held in the lower Cong. 2d Sess. 252,) or a motion to postpone 

house of congi-ess, that a motion to lie on the to a day certain, (Reg. of Deb. IX. Fart 2, 

table, or to reconsider an order to lie on the 1760,) or indefinitely, (Cong. Globe, XXI. 

table, (J. of H. 27th Cong. 3d Sess. 334; Cong. 1322, 1678,) cannot be ordered to lie on the 

Globe, XII. 256; Same, XXIII. 749,) cannot table; that a motion for the previous question 

be suppressed by a motion to lie on the table, cannot be applied to a motion to postpone in- 

(J. of H. 27th' Cong. 8d Sess. 211; Cong, definitely (Reg. of Deb. IX. Part 2, 1757) 

Globe, XI. 452;) that a motion to commit and that a motion to lie on the table cannot 

cannot be suppressed by a motion to post- be postponed, (Cong. Globe, XV. lt)80,) or 

pone nidefinitely, (J. of H. VII. 75,) that a amended, (Cong. Globe, IV. 80). 

motion for the previous question, (J. of H. 29th 2 Jefferson's Manual, Sec. XXXIII. 



Chap. VL] incidental questions. — questions of order. 567 

as to one day instead of another, or to a special, instead of an 
indefinite time.^ 

1455. The previous question, however, cannot be amended ; the 
nature of it not admitting of any change. Parliamentary usage 
has fixed its form, Sliall the main question be now put ? that is, at 
this present time ; and, as the present time is but a single point, it 
cannot admit of any modification; and to change it to the next 
day or any other moment is without example, as it would be with- 
out utility.^ 



Article II. Incidental Questions. 

1456. Incidental questions are those which arise out of and are 
connected with (though they do not necessarily dispose of) other 
questions, to which they relate, and which, for the time being, they 
supersede. It would, of course, therefore, be difficult, beforehand, 
to enumerate all the motions of this description, which might arise 
under any circumstances. The following, however, are those which 
most usually occur, first, questions of order ; second, questions for 
reading papers; third, questions on leave to withdraw motions; 
fourth, questions on suspending or dispensing with a rule ; and 
fifth, that the pending question, when taken, be taken by yeas and 
nays. 

1. Questions of Order. 

1457. It is the duty of the speaker of the house of commons to 
enforce the rules and orders of the house, in aU its proceedings, and 
this without question, del^ate, or delay, in all cases, in which the 
breach of order, or the departure from rules, is manifest. It is also 
the right of every member, taking notice of a breach of order, to 
insist upon the enforcement of it in the same manner. In the house 
of lords, the lord chancellor, or speaker, has no more power, in this 
respect, than any other peer. 

1458. But, though no question can be made as to the enforce- 
ment of the rules and orders, when there is a breach or manifest 
departure from them, so long as any member insists upon their 
enforcement ; yet questions may and do frequently arise, as to the 
fact of there being a breach of order, or a violation of the rules, in a 

> Jefferson's Manual, Sec. XXXIIL ^ Jefferson's Manual, Sec. XXXIIL 



568 LEGISLATIVE ASSEMBLIES. [PaRT VI 

particular proceeding, or as to what the rule or order is, or what 
the form of proceeding shall be, in a particular case ; and these 
questions must be decided, before a case can arise for the enforce- 
ment of the rules. Questions of this kind are denominated ques- 
tions of order. 

1459. When any question of this nature arises, in the course of 
any other proceeding, it necessarily supersedes the fiirther considera- 
tion of that subject, until it is itself disposed of; ^ then the original 
motion or proceeding reyives, and resumes its former position, 
unless it has been itself disposed of by the question of order.^ 

1460. The presiding officers of the American legislative assem- 
blies, whether members or not of the bodies over which they preside, 
have the same authority in this respect with the speaker of the 
house of commons; and it is usually made then duty, also, by a 
special rule of their respective assemblies, to decide aU questions of 
order, subject to an appeal to the assembly. 

1461. In parliament the speaker's decision is not conclusive ; but 
a question may be framed contrary thereto by any tv^^o members, 
one to move and the other to second his motion, for the decision of 
the house.^ This is a very uncommon proceeding,* but until it 
takes place, the speaker's decision cannot be called in question or 
departed from ; it stands as the judgment of the house. In our 
assembhes, it is a common proceeding, and bears the name of an 
appeal. The question is not taken, ho"s^^ever, on sustaining or 
reversing the decision of the chair, ^vhich is entnely abrogated by 
the appeal, but whether the decision of the chair shaU stand as the 
judgment of the house.^ This is the substance of the question, 
which is always put upon an appeal, though the form is sometimes 
changed. 

1462. Questions of order, for the decision of the presiding officer, 
arise in tw'o different manners, both relating to the business before 
the assembly, either as to its general course, or to the particular 
matter then under consideration. The presiding officer, sometimes, 
and especially in regard to the general course of business, volun- 
tarily expresses a statement of his opinion ; and, sometimes, he 
does so, more frequently, perhaps, in relation to the particular matter 
then under consideration, at the suggestion of an individual mem- 
ber. Sometimes, also, especially in doubtful matters, either undei 

1 Cong. Globe, X. 297. s Comm. Jour. L 369. 

- See an example, Comm. Jour. XXXII. * Appendix, XIII. 
834. ^ J. of G. X. 45, 48; 356, 357. 



Chap. VI.] incidental questions. — questions of order. 569 

his general authority,^ or in virtue of a special rule,^ he puts ques- 
tions of order, in the first instance, directly to the house. 

1463. It then becomes important, in certain cases, especially 
when the question arises on the suggestion of an individual mem- 
ber, to determine what are questions of order, for the decision of 
the presiding officer ; and, herein, no other general rule can be laid 
down, than that a question of order, always, whatever other effect it 
may have, is one which affects the present state of the business of 
the assembly ; but the present effect of a motion, as to its subject- 
matter ; ^ or its prospective operation, as a matter of order, on the 
business of the house ; ^ or whether the assembly is dissolved or not 
by the lapse of time ; ^ is not a question of order. The presiding 
officer's opmion, on a point of order, may be revised and corrected, 
at any time v/hen the subject is before the assembly ; ^ but it is 
irregular to raise one point of order upon another, so that there may 
be two questions of order pending at once.'^ 

1464. When, therefore, the presiding officer of an assembly is 
called upon by any individual member (and no seconder is neces- 
sary) to give his opinion as to a matter of order arising, or which 
the member supposes to have arisen, as well as in those cases in 
which the presiding officer volunteers his opinion, he gives it at 
once, either "with or without reasons, as he thinks proper, and pro- 
ceeds to direct the assembly accordhigly.^ Before, however, giving 
his opinion, the presiding officer may take the opinions of other 
members, at his pleasure, not in the shape of debate, on the ques- 
tion ; but when he rises up to speak all the other members must at 
once resume their seats and be silent.^ In the opinion given by the 
presiding officer, he may either decline deciding the point of order, 
as, for example, for some of the reasons above mentioned, ^^ or he 
may decide it, either in the affirmative or negative. If the opinion 
is acquiesced in, it stands as the judgment of the assembly, and is 
to be enforced or executed accordingly; but any member, who 
obtains the floor for that purpose,!^ may appeal from it, and if the 



1 May, 264; Cong. Globe, VIII. 226. 32d Conp;. 1st Sess. 611; Reg. of Deb. IV. 

2 In the senate of the United States, there Part 2, 2291; Same, Part 1, 5; Cong. Globe, 
is a rule that " the president may call for the XVII. 253, 290. 

sense of the senate on any question what- ' Reg. of Deb. VIII. Part 3, 3874; Cong, 

ever." Globe, VIII. 65. 

3 J. of H. 32d Cong. 1st Sess. 611, 679; » Reg. of Deb. IV. Part 2, 2294. 
Cong. Globe, XX. 532. » May, 264. 

* Cong. Globe, XXII. 1749. w j. of H. 32d Cong. 1st Sess. 611. 

6 Reg. of Deb. XI. Part 2, 1658. " Cong. Globe, IV. 221. 

6 J. of H. 31st Cong. 1st Sess. 1404; Same, ■ 

48* 



570 LEGISLATIVE ASSEMBLIES. [PaRT VL 

appeal is seconded as it must generally be,^ and allowed, it then 
entirely abrogates the decision of the presiding officer, and refers 
the point of order to the decision of the assembly itself, whose 
decision thereof furnishes the rule to be pursued after^'-ards.^ 

1465. The opinion of the presiding officer, on a point of order, 
is considered as acquiesced in, and an appeal therefrom not season- 
ably taken, when any parliamentary proceeding'^ is allowed to take 
place afterwards ; as, for example, where the mover of an amend- 
ment, which was adjudged to be out of order, not knowing of the 
decision, suffered another member to obtain the floor and to addi-ess 
the assembly, for some moments, before he claimed his appeal;* 
and, so, where the clerk has commenced calling the roll, and five 
members have answered to then* names, it was held to be too late 
to question the decision of the presiding officer on a point of 
order.^ 

1466. An appeal may involve an inquiry oifact, that is, the rule 
being clear, whether a case exists within it, or of law, that is, the 
fact being indisputable, whether it comes v^dthin any such rule as 
is alleged ; ^ it may be placed under the operation of the previous 
question ; " and the question thereon may be taken by yeas and 
nays,^ and divided if divisible.^ An appeal may be withdrawn,^'' 
at the pleasure of the mover, and, being withdrawn, may be rene^wed 
by him or some other member ; and the decision thereon may be 
reconsidered. An appeal may be debated ^^ as a question before the 
assembly ; although the proceeding out of which it arises is not 
debatable ; ^^ and the motion, which gives rise to it may be modi- 
fied,^^ or withdrawn ; ^^ in which latter case, the appeal, of course, 
falls. 

1467. If an adjournment of the assembly takes place, whUe an 
appeal is pending, the appeal is not thereby suppressed, but goes 
over to the next day, with the business to which it belongs, as the 
unfinished business of the day, on which the adjournment takes 
place.^^ So, where the hour,^^ or the day,^'' on which the business, 

1 This will depend, of course, upon the rules i" J. of H. Yil. 76 ; Same, 26th Cong. 1st 
of eflch assembly. Sess. 126; Reg. of Deb. XL Part 1, 965. 

2 Cong. Globe, IH. 315 ; Same, VIIL 246. " Reg. of Deb. XIL Part 2, 2536. 

3 Cong. Globe, XV. 178. ^ Reg. of Deb. XII. Part 2, 1970. 
* Cong. Globe, XII. 243. « Cong. Globe, XV. 359. 

5 Cong. Globe, XXI. 1749. " Reg of Deb. VH. 404; Cong. Globe, XHI. 

« Cong. Globe, XVIII. 941. 256. 

"> Cong. Globe, VIIL 247; Same, X. 154. " j. of H. IV. 152; Same, 26th Cong. 1st 

8 Cong. Globe, XIV. 369. Sess. 673. 

9 J. of H. IV. 152. w Cong. Globe, X. 301. 

" Cong. Globe, IX. 124. 



ClIAP. VL] INCIDENTAL QUESTIONS, QUESTIONS OF ORDEK. 571 

giving rise to an appeal, is in order, expires, the appeal goes over, 
with that business, to the next hour or day, on which that business 
is in order ; a similar result follows from the postponement, in any 
form, of the subject to which an appeal is attached; and, when 
taken in committee of the whole, if the committee rises and sits 
again during the pendency of the appeal, the latter revives, when- 
ever the business, to which it belongs, is again brought forw^ard in 
the committee.^ The question on an appeal may be taken directly ; 
or the appeal, if the motion for that purpose is not first withdrawn,^ 
may be ordered to he on the table.-^ In this latter event the motion 
is an independent one, and if it prevails, nothing but the appeal 
itself will be laid upon the table, and the matter, whatever it may 
be, which gives rise to it, proceeds as before.* 

1468. It may be urged, as an objection, against an appeal, on 
the ground of order, that it presents the same question, which has 
already been decided by the assembly, and acquiesced in as a point of 
order. In these cases, the presiding officer, especially when the iden- 
tity of the question is not apparent, or when the question is a new 
one, generally overrules the objection, on the ground, that, being a 
matter of opinion only, about which members may differ, it will be 
best to submit the question at once to the assembly.^ But two 
different questions of order, in reference to the same general subject, 
may be brought for^vard consecutively ; ^ and although the same 
question cannot regularly be made a second time, yet if a motion 
is objected to as not in order, on one ground, which is overruled 
by the presiding officer, it is then competent to the same or another 
member, to object to the motion as not in order, on a different 
ground.^ It is, of course, immaterial, in this respect, whether the 
decision is made by the presiding officer alone, and acquiesced in, 
or by the assembly on appeal ; and whether the objection is taken 
before the presiding officer, or on appeal.^ 

1469. It may be urged, in the second place, as an objection, in 
point of order, against an appeal, that there is another appeal pend- 
ing, and under consideration, in reference to the same general 
subject, though not to the same point of order ;9 but if the first 



1 Cong. Globe, XV. 359. 6 Cong. Globe, VIII. 247, 395. 

2 Cong. Globe, VIII. 246, 247. « Cong. Globe, X. 154. 

3 Cong. Globe, X. 301; Same, XI. 133; J. " J. of H. 32d Cong. 1st Sess. 146, 785. 
3f H. 24th Cong. 1st Sess. 885. 8 Cong. Globe, XIV. 369. 

4 J. of H. 26th Cong. 1st Sess. 530; Cong. 9 Reg. of Deb. IV. Part 1, 5; Cong. Globe, 
Globe, VIII. 246. XVII. 290; Same. XXI. 94. 



572 LEGISLATIVE ASSEMBLIES. [PaUT VI. 

appeal is disposed of, as for example, by being laid on the table, the 
second is in order.^ 

1470. A third objection, in point of order, to an appeal, is, that it 
is raised on, or grows out of, another appeal ;2 that is to say, if, 
during the consideration of a point of order on appeal, a question 
of order arises, the decision of the latter by the presiding officer 
must be submitted to ^\dthout appeal ; for appeals cannot be piled 
upon one another, any more than there can be a division upon a 
division. In this case, the second question of order cannot be 
made the subject of an appeal, by the withdrawal^ or other dis- 
position of the first. 

1471. The presiding officer, if there is any rule of the assembly 
to that effect, may requu-e an appeal to be reduced to writing, and 
submitted to him in that form.* The question is stated for the 
determination of the assembly in the same manner with the ques- 
tion on any other motion ; and, on this question, if debatable, the 
presiding officer may participate in the debate Kke any other mem- 
ber. Where an appeal is not debatable the presiding officer is only 
at liberty to give his opinion of the point of order, submitted on 
the appeal, with the reasons on which it is founded.^ In all cases, 
he may decide the question, and if he pleases may sustain his 
own decision by means of his casting or other vote.^ 

2. Reading Papers. 

1472. It is, for obvious reasons, a general rule, that, where papers 
are laid before the house for their consideration in reference to 
which a motion is made, any member has a right to have such 
papers read through once "' at the table, before he can be compelled 

1 J. of H. 24th Cong. 1st Sess. 902. the decision of the presiding officer, and that 

2 Cong. Globe, X. 154; Same, XVII. 573. in the case of a tie vote, the decision is sus- 
8 Cong. Globe, XVII. 573. tained. But unless there is some custom in 

* Cong. Globe, XI. 176. that body (there is no rule to that effect) 
^ Cong. Globe, XXI. 832 ; Same, XXIII. 512. which sanctions this departui-e from the ordi- 

* J. of H. I. 229 ; Reg. of Deb. VIII. Part 3, naiy rule, it is difficult to see upon what 
3295. In the senate of the United States, in ■ ground it rests. The same principle has been 
■which the question on an appeal is stated in recently asserted, and apparently abandoned, 
common form, " Shall the opinion of the chair in the house of representative? of the United 
stand as the judgment of the house," and the States. Cong. Globe, XXI. 1607, 1608. 
principle is admitted and practically applied, "> J. of H. 25th Cong. 2d Sess. 943. The 
that where there is an equality of voices the extent, to which this mle may be carried, 
decision is in the negative, it is said (J. of S. »vas forcibly illustrated by a recent proceed- 
86th Cong. 1st Sess. 523 ; J. of S. 32d Cong, ing in the house of representatives at Wash- 
xst Sess. 651 ;) that on an appeal, a majority ington. A motion being under consid-eration 
of the votes is necessary in order to reverse in that body, to reconsider a vote, whereby it 



Chap VL] incidental questions. — questions of order. 573 

to give his vote upon them,^ but, when they have once been read to 
the house, they are then, like every other paper that belongs to the 
house, to be moved for to be read ; and, if the matter is disputed, 
it must be decided by taldng the sense of the house.^ In regard to 
papers of this description, therefore, if any member insists upon 
their being read, and any other member wishes to have the reading 
dispensed with, or suspended if it has already been commenced, the 
latter must first move a suspension of the rules, to enable him to 
move that the reading be dispensed with or suspended, and if a 
suspension takes place, then to make a motion accordingly for the 
purpose in view;^ 

1473. Besides papers of the description above referred to, which, 
in fact, make a part of the question before the house, there are other 
documents of a public nature, accessible to everybody, as acts of 
parliament, journals of the house, proclamations and papers, pri- 
vate or official, received or ordered by the house,^ etc., which mem- 
bers desire to have read for the information of the house, either 
with reference to some question then pending, or for the purpose of 
laying a foundation for further proceedings ; and, in all such cases, 
as well as in reference to papers, involved in a pending question, 
which have already been once read, the reading must be on motion 
and vote. 

1474. The reading of a paper, not regularly before the assembly, 
which sometimes takes place for its information only, is in conse- 
quence of general consent, and not in virtue of the rule above men- 
tioned.-^ Nor is the reading of a paper in order after the previous 
question has been moved.*^ 

1475. The practice of the house of commons, in reference to the 
reading of papers, not coming within the rule above laid down, is, 
that if any member moves for an act of parliament, a journal or 
paper, to be read, which the house sees is really for information, 
and not for affected delay, and no member objects to it, the speaker 
directs it to be read without putting a question ; but, if any mem- 
accepted, and ordered to be dciio-^ited in the ^ J. of H. 32d Cong. 1st Sess. 405, 1117. 
library, a copy of Raymond's Political Econo- * This class of papers being equally in the 
my, a member threatened if his colleague was possession of the house, for its consideration, 
not suffered to proceed, to call for the I'eading with those mentioned in the preceding para- 
of the entire volume, and his right to have the graph, the distinction between them is, that 
same read by the clerk, at the table, was ad- some motion is made in reference to the 
mitted by the speaker. The reading did not latter. 

take place. Cong. Globe, VIII. 483. ^ Cong. Globe, VIII. 210; Same, XI. 162; 

1 Reg. of Deb. X. Part 3, 2870; Cong. Globe, Same, XIII. 61. 

VI. 329; Same, VIII. 494; Same, XI. 248. « Cong. Globe, XIII. 374. 

2 HatseU, II. 164, 165. 



574 LEGISLATIVE ASSEMBLIES. [PaKT VI 

ber objects to it, the speaker must take the sense of the house by 
a question, upon this difference of opinion, as upon every other ; no 
member having a right, as has been sometimes supposed, upon his 
Q-^m motion, only, to insist upon having any such paper read, with- 
out the house having any power to interfere to prevent him.^ 

1476. Li all cases, where the reading of a paper is the subject of 
a motion, as it may be, when some other question is pending, the 
former motion takes precedence of the principal question to which 
it is incidental, and must first be decided.^ 



3. Withdrawal of a Motion. 

14:77. It has already been seen, in another part of this treatise, 
that when a motion is regularly made, seconded, and proposed from 
the chair, it is then in the possession of the house, and cannot be 
withdrawn by the mover, except in viiiue of a special rule, without 
the leave of the house, first obtained for the purpose, and for which 
the unanimous consent of the house is necessary. Hence, when 
the mover of a question wishes to modify it, or to substitute a 
different one in its place, or to prevent the house fi'om coming to a 
decision upon it, this can only be done by a motion for leave to 
withdraw it, and the sense of the house being ascertained by a 
question. K there is no rule which authorizes a member to "^dth- 
draw or modify his motion, and objection is made to its bemg done 
by general consent, the member may then move a suspension of the 
rules to enable him to "UT-thdraw or otherwise dispose of his motion. 
If he has a right to withdraw at pleasure, he must as in other cases 
first obtain the floor for that purpose. BiUs and other documents, 
which have been received by the house, may be withdrawm at any 
tune by the ordinary major vote. Proceedings for the withdrawal 
of a motion, biU, or other document, supersede the pending question, 
for the time being ; if decided in the affirmative, the motion to 
which they relate is thereby removed from before the house ; if in 
the negative, the business proceeds as before. 



1 Hatsell, n. 163, 164. ing with it the principal motion, but this 

2 It seems, that an incidental question may must be determined by the nature of each 
be disposed of, by any of the ordinary subsid- question. 

iary motions, in some cases, without carry- 



Chap. VI.] incidental questions. — suspension of rules. 575 



4. Suspension of a Rule. 

1478. "When any contemplated motion or proceeding is irregular, 
by reason of the existence of some order of the house, either stand- 
ing or otherwise, by which it is prohibited, such motion cannot be 
made, or, if made, cannot be entertained by the speaker, without a 
suspension of the rule or order, which renders it irregular. Some- 
times a suspension of the orders is moved as a preliminary step, 
before the proposed motion or proceeding is brought forward ; ^ 
sometimes it is moved after the motion has been made and objected 
to as m-egular; and sometimes a suspension of the orders takes 
place virtually, without being moved, but only by the adoption of 
the motion or proceeding, in question, which, in fact, involves a 
suspension of the orders. 

1479. When this proceeding becomes necessary, in order to the 
admission of some other motion, having a reference to a proposition 
then under consideration, a motion to suspend the orders super- 
sedes the original question for the time being, and is first to be 
decided. 

1480. "Where a rule or order contains a provision, permitting 
the house, on any occasion, that, in their judgment, may justify a 
departure from the rule, to do so,^ the order may, as it seems, be 
dispensed with according to its terms, or by a vote of the majority 
in the usual manner ; but, where the rule is absolute, and contains 
no such provision, it can only be departed from, or set aside in 
the particular case, by general consent, that is, by an unanimous 
vote.3 

1481. In all those cases, except as above mentioned, where a 
suspension of the orders is not moved as a distinct motion, but is 
virtually involved in some other motion or proceeding, which is 
alone put to the question, such motion can only prevail by general 
consent. 

1482. In the British parliament, from the practice of which the 
foregoing principles are derived, the suspension of a rule for a par- 
ticular purpose is an extremely rare proceeding. In our legislative 
assemblies, on the contrary, it is of frequent occurrence, and, for 



1 Hans. (8), L. 157. « Pari. Reg. IX. 102. 

2 Pari. Reg. XIX. 5; J. of H. 26th Cong. 
1st Sess. 612; Reg. of Deb. IV". Part 2, 1722. 



576 LEGISLATIVE ASSEMBLIES. [PaRT VI. 

the time being, supersedes, of course, the business then in hand, or 
the general course of business ; if moved ^dth reference only to a 
subject then before the assembly, it is incidental to that busi- 
ness only ; if there is no other subject then before the assembly, and 
the motion is made for the purpose of introducing some ne\v mat- 
ter, as, for example, a bill or resolution, the motion is incidental to 
the general course of business ; but, in both cases, the motions to 
suspend the rules are regulated in the same manner, and will be 
explained together. 

1483. The motion to suspend the rules is usually preceded by a 
member's requesting the general consent of the assembly to the doing 
of a particular thing. If no one objects, (and any thing whatever 
may be done by general consent,) the assembly is deemed to assent, 
and what is desu-ed is allowed accordingly.^ If objection is made, 
then the member moves that the rules be suspended for the specific 
purpose which he has in view. 

1484. This motion may be made at any time, when a motion is 
in order, and for any purpose ; ^ it may be either for the suspension, 
of a particular rule or of the rules generally ; ^ and, if made in the 
latter form, and it prevails, it will operate to suspend aU the unwrit- 
ten as well as the -un-itten, rules, (except the rule allowing of a sus- 
pension,) which govern the assembly, and are opposed to the doing 
of the thing which the mover desires to do. 

1485. This motion may be occasioned by a lapse of the time 
within which certain business is in order, for the purpose of con- 
tinuing the discussion thereof;'^ for the purpose of throwing open 
particular days otherwdse devoted to the consideration of a certain 
class of subjects ; ^ for the purpose of reading a bill more than once 
on the same day;^ for the purpose of going into committee of the 
whole at a particular time ; ' for the purpose of admitting the pre- 
sentation of resolutions ; ^ for the purpose of receiving reports ; ^ for 
the purpose of a personal explanation ; i° and, generally, for the pm*- 

1 J. of S. v. 92. 23d Cong. 1st Sess. 631 ; Cong. Globe, VIIL 

2 J. of H. 29th Cong. 1st Sess. 364. See 452. 

also Cong. Globe, XVIL 439; Same, XX. « J. of S. 14th Cong. 2d Sess. 41; Same. 

188. 15th Cong. 1st Sess. 404; Cong. Globe, VIIL 

» Cong. Globe, XV. 343; Same, XVIIL 504; Same, XIL 371. 

1029. ' J- of H. 27th Cong. 1st Sess. 855; Cong. 

* J. of H. 20th Cong. 1st Sess. 137, 1403; Globe, VIII. 431. 

Same, 656, 657; Same, 23d Cong. 2d Sess. » J. of H. 27th Cong. 1st Sess. 169; Same, 

356; Cong. Globe, XHL 352; Same, XIV. 31st Cong. 1st Sess. 1092, 1096. 

124. « Cong. Globe, XV. 236. 

6 J. of H. 21st Cong. 1st Sess. 687; Same, ^ Cong. Globe, XV. 729. 



Chap. VL] incidental questions. — suspension of rules. 577 

pose of transacting any of the ordinary business of the assembly 
which would not otherwise be in order ; ^ or it may be limited as 
to time, as, for one hour,^ or one day,-^ or until a particular member 
has finished his speech, and then to enable another to make a 
motion ; "* or limiting the duration of the time which members may 
occupy in debate.^ K the motion to suspend applies to a joint 
rule, which it does not unless particularly specified, the concurrence 
of both houses is necessary.^ 

1486. If the assembly is engaged in the consideration of other 
business, at the time, a motion to suspend the rules for a particular 
purpose, is in order, provided there is then no motion pending for 
the suspension of the rules ; "' or provided the motion for the pre- 
vious question is not pending,^ though it is otherwise if the main 
question has been ordered ; ^ or provided the assembly is not abeady 
acting under a special order, to the establishment of which a sus- 
pension of the rules was necessary ;^o or provided the assem- 
bly is not already engaged, in acting under a suspension of the 
rule.^^ 

1487. If a motion to suspend the rules for a particular purpose 
is decided in the negative, there can be no reconsideration of the 
vote.^2 -^Qj; jg ajjy second motion to suspend the rules for the 
same purpose in order on the same day ; ^^ unless the motion is 
varied in its terms,^* or is for a different time ;'5 qj. unless some inter- 
vening business takes place ; ^'^ but a second suspension for the same 
purpose is in order on a different day ; ^'' and a vote to suspend the 
rules may be reconsidered. 

1488. This motion cannot be amended ^^ nor can it be laid on the 

1 J. of H. 22d Cong. 2d Sess. 385; Same, Deb. X. Part 3, 3473; Cong. Globe, XIII. 446, 
23d Cong. 2d Sess. 656; Same, 24th Cong. 1st 447; Same, XVIII. 439. 

Sess. 472; Same, 1213; Same, 2d Sess. 204; » J. of H. 31st Cong. 1st Sess. 1550; Cong. 

Same, 30th Cong. 1st Sess. 956; Reg. of Deb. Globe, XI. 824; Same, XVII. 401. 

X. Part 2, 2783; Cong. Globe, XV. 123, 231. lo J. of H. 31st Cong. 1st Sess. 1096; Cong. 

2 J. of H. 29th Cong. 1st Sess. 1235; Cong. Globe, XVII. 401, 439; Same, XVIII. 639. 
Globe, XIV. 123. 11 Cong. Globe, XI. 58, 142; Same, XIL 

3 J. of H. 21st Cong. 1st Sess. 679. 317; Same, XV. 67, 790; Same, XXI. 1225. 
* J. of H. 23d Cong. 1st Sess. 631. 12 Cong. Globe, XXIII. 182, 227. 

5 Cong. Globe, XV. 342. w Cong. Globe, VIII. 89, 257, 268. 

8 J. of H. ISth Cong. 1st Sess. 139; J. of S. " Cong. Globe, VIII. 89. 
IBlh Cong. 2d Sess. 241 ; J. of H. 20th Cong. is Cong. Globe, VIII. 432. 
2d Sess. 383, 388; J. of S. 21st Cong. 2d Sess. w Cong. Globe, VIII. 268; Same, XXIH. 

214; J. «f H. 24th Cong. 1st Sess. 1210-1217; 753. 

Reg. of Deb. VI. Part 2,1139; Cong. Globe, " Cong. Globe, VIII. 93. 
XII. 371; Same, XIV. 278. is Cong. Globe, XX. 319, 320; but see J. of 

' Cong. Globe,VIII. 487; Same, XIII. 617,664. H. 24th Cong. 1st Sess. 1217; Cong. G-cbe 

•J. of H. 24th Cong. Ist Sess. 591; Reg. of XI. 121, 387. 

49 



578 LEGISLATIVE ASSEMBLIES. [PaRT VI. 

table 1 or postponed indefinitely ; ^ but the previous question may- 
be put upon it ; ^ it may be taken by yeas and nays "^ and it may be 
taken as divided, if divisible.'^ If the assembly adjourns dmdng its 
consideration, it is not suppressed by the adjournment, but goes 
over to the next day, as the ' unfinished business of the preceding 
day, or to the next day on which business of the same description 
is in order.^ A suspension of the rules may take place without any 
of the previous formalities which are necessary when it is proposed 
to alter the rules." On this motion the biU or resolution, which it 
seeks to introduce, cannot be read, but by its title only ; ^ nor can 
any order be made concerning it untU it is before the assem- 
bly.9 

1489. If this motion, being made for the purpose of introducing 
some new business, is decided in the affirmative, the same is to be 
introduced in the ordinary manner,^^ and it -^dll then be open, like 
every other paper of the same description, to amendment, modifica- 
tion, rejection, and discussion.^^ Such a decision wiR authorize the 
introduction of the same resolution mentioned in the motion, by 
another person than the mover, and even though the latter with- 
draws the resolution ar refuses to submit it ; ^^ but it will not author- 
ize the introduction of a different biU,^-^ or of two resolutions instead 
of one.^^ 

1490. When a given subject is allowed to be introduced, under 
a suspension of the rules for the purpose, and it is introduced 
accordingly, such suspension is an authority to do, in the accus- 
tomed methods of proceedmg, whatever may properly relate to that 
subject. Thus, if authority is given under a suspension of the 
rules, to introduce a resolution on a particular subject, which is 
introduced and received accordingly, it may not only be introduced, 
but considered and finished.^° 

1491. This motion, unless it is otherwise provided in the rules 
themselves, is decided by the ordinary major vote. Thus, in the 

1 Cong. Globe, XV. 1135 ; but see Same, ^ Cong. Globe, XJU. 446, 447. 

51. 1° J. of H. SOth Cong. 2(i Sess. 330; Cong. 

2 Cong. Globe, YJll. 120. Globe, XIIL 446, 447. 

3 J. of H. 24th Cong. 2d Sess. 187. " Cong. Globe, VI. 369 ; Same, XX. 188. 

* Cong. Globe, VII. 38; Same, VHI. 431, ^- J. of H. 23d Cong. 1st Sess. 631; Eeg. of 

432. Deb. X. Part 3, 4136. 

6 Cong. Globe, XX. 319, 320. is Cong. Globe, IIL 300; Same, XXI. 1727. 

6 Cong. Globe, XXIH. 145. " Cong. Globe, XL 574. 

T J. of S. 21st Cong. 2d Sess. 214; J. of H. " Cong. Globe, ^^^. 94, 336; Same, XH. 

22d Cong. 2d Sess. 126 ; Same, 29th Cong. 1st 292. But see J. of H. 27th Cong. 2d Sess. 763 

Sess. 364; Cong. Globe, VEI. 504. 764. 

8 Cong. Globe, XX. 615. 



Chap. VI.] incidental questions. — yeas and nays. 579 

rules of the house of representatives of the United States, a pro- 
vision is inserted, that the rules shall not be suspended, but by a 
vote of two thirds ; while the joint rules are silent on the subject. 
The consequence is, that the rules of the house can only be sus- 
pended by a vote of two thirds, but the joint rules may be sus- 
pended by the concurrent votes of a majority of each branch.^ 

1492. A suspension of Ihe orders can only take place in reference 
to a proceeding to be instituted, or a motion to be made, during 
the current session : thus, where a motion was made in the house 
of commons that the promoters of a certain railway might be al- 
lowed to bring in a bill in the next session, on giving the notices 
required in reference to other bills, and that the standing orders 
relating to the deposits of capital on railways be dispensed with 
for the purpose, the motion was objected to, (and appears to have 
been waived by the mover,) on the ground, that " it would be for 
that session of parliament to inquire whether the proper notices 
had been given, and whether the proper deposits had been made, 
and whether, in fact, the standing orders had been complied with ; 
and if that were not the case, then would be the time to endeavor 
to induce the house to accede to the proposition now made." •^ 

5. Of taking the Question by Yeas and Nays. 

1493. It is provided in almost all the American constitutions, 
that the yeas and nays of the members of our legislative bodies, 
on any question pending before them, shall be taken and recorded 
in their journal, on the demand of a certain number of the members 
present, or of a certain proportion of their number ; but no mode is 
therein pointed out for ascertaining whether that form of taking 
the question is demanded by the requisite number. This is left to 
be done by putting the question, on the demand of a single mem- 
ber, in the ordinary manner. The motion for this purpose is inci- 
dental to the ordinary course of proceeding. 

1494. The practice in demanding or moving for the yeas and 
nays is the same, whether they are moved for under this provision, 
or where they are only provided for by the rules and orders of 
the assembly in which they are proposed to be taken. They may 
be demanded by a single member, and it then becomes the duty 
of the presiding officer to ascertain whether the requisite number 
is in favor of the demand. This method of voting may be applied 

1 Cnncr. Globe, XII. 374; Same, XIII. 695; « Hans. (3), LV. 14. 
Same, XIV. 394. See Same, XX. 529. 



580 LEGISLATIVE ASSEMBLIES. [PaET VL 

to all questions, whether subsidiary or principal, which are before 
the assembly for its determination, but not to matters which are 
not strictly questions ; as, for example, to a motion for the yeas 
and nays, or, where more than one member is requu'ed, whether the 
requisite number is in favor of a demand for the previous question,^ 
or to a motion to reconsider a demand for the previous question.^ 

1495. The yeas and nays may be ordered, when a quorum is 
not present on all questions which may be taken without a quo- 
rmn, but not on others ; ^ and may be moved for after a question 
is proposed, not only during the voting on it in any other form, as, 
for example, while the negative vote is taking,^ or while the vote is 
announcing,^ or before it is announced,^ but even after the decision 
is announced, provided the house has not passed to other business^ 
If the yeas and nays are ordered to be taken on a motion which is 
subsequently withdrawn, and afterwards renewed, there must be a 
new motion and vote for taking the question by yeas and nays.^ 

1496. A motion for the yeas and nays can only be made once 
in reference to the same question.^ If decided in the negative, it 
is not in order to move a second time that the question be taken in 
that manner.^'^ If decided in the affirmative, the order may be dis- 
charged or rescinded by the revising of the vote by which the yeas 
and nays are requu-ed to be ordered. In both cases, the matter 
may be reached again by a motion to reconsider.^^ This motion is 
itself to be decided by the ordinary rnajor vote ; but, if decided in 
the affirmative, it gives rise at once, to the motion for the yeas 
and nays, to be decided according to the rule established for that 
pmrpose.^ 

1497. When a question is ordered to be taken in this manner, it 
is open to debate until the clerk has begun to call the roU and one 
member at least has answered to his name, when further debate is 
precluded ; ^-^ none but members who are within the bar, that is to 
say, wdthin the house, when the question is stated, have a right .to 
give their votes upon it ; ^^ and any member who has akeady an- 

^ J. of H. 19th Cong. 2d Sess. 254; Cong. 8 Qong. Globe, VIH. 393. 

Globe, XX. 260, 261, 262 ; Same, XXL 1568. ^ Cong. Globe, XX. 623, 624. 

2 J. of H. 26th Cong. 1st Sess. 1288. i" Cong. Globe, XIV. 88; Same, XV. 303, 

3 J. of H. 32d Cong. 1st Sess. 651, 652, 727; • 304. 

Same, 2d Sess. 87,145; Cong. Globe, XIV. " Cong. Globe, XX. 623, 624; J. of H. SOth 

830. Cong. 1st Sess. 405 ; Cong. Globe, VIU. 420- 
* Cong. Globe, XI. 883; Same, XIV. 121. ^"- J. of H. SOth Cong. 1st Sess. 405. 

5 Cong. Globe, XV. 420. i^ J. of H. VI. 446; Same, 17th Cong. 1st 

« Cong. Globe, XI. 741 ; Same, XHL 482. Sess. 216, 217 ; Reg. of Deb. IV. Part 2, 2479 

f J of H. 32d Cong. 2d Sess. 194, 195 ; Cong. Cong. Globe, XXI. 1680. 
Globe, XXI. 277. i* J. of H. 19th Cong. 1st Sess. 796. 



Chap. VI.] incidental questions. — yeas and nays. 581 

swered to his name may, at his own request, be called again ^ and 
change his vote, and back as many times as he pleases,^ at any 
time before the decision is announced.^ The yeas and nays cannot 
be taken in committee of the whole.'^ 

Section II. Of Motions related to, or connected with, some 
Subject which is deemed to be of Paramount Importance. 

1498. The second class of questions, which, when they arise, 
take the place of other pending questions, for the time being, con- 
sists of those which relate to, or are connected with some subject 
which is deemed to be of paramount importance, either m itself 
considered, or in virtue of some previous vote or proceeding of the 
house. Questions of this class are of two kinds, namely, motions 
or questions relating to the rights and privileges of the house, or of 
its individual members, and those relating to the orders of the day, 
and other matters of business. The first are called questions of 
privilege ; the latter privileged questions. 

1. Questions of Privilege. 

1499. The very existence of a legislative assembly, to say 
nothing of its power of acting with freedom and efficiency, depends 
so entkely upon the maintenance of what are denominated its privi- 
leges, and of the privileges of its individual members, that all 
questions relating to these subjects are deemed of paramount 
importance, and are allowed to supersede for the time being any 
other question which may then be under consideration. When, 
therefore, any question of this kind arises, as, for example, when 
members are attacked with force and violence, either within the 
precincts of the house, or on their way thither ; or are obstructed in 
entering the house, either by violence or insult ; when the proceed- 
ings of the house are disturbed or interrupted, either by members 
or strangers ; when the freedom of debate and proceeding is 
attempted to be overawed by mobs or armed force wdthout; or 
when a personal quarrel takes place between two or more mem- 
bers, within the house ; in all such cases, the house will proceed, at 
once, laying aside, or rather suspending, without any vote, all 
other business, to consider the matter in which their privileges are 
involved ; and, if necessary to bring the subject before the house, a 
Taember speaking may even be interrupted in his speech, in the 

1 Cong. Globe, X. 55. s ,L of H. V. 71 ; Cong. Globe, XUI 325, 326. 

2 Cong. Globe, XXL 171. * Cong. Globe, XIIL 618. 

49* 



582 LEGISLATIVE ASSEMBLIES. [PaET VL 

same manner, as if he had been guilty of a breach of the orders of 
the house. 

1500. When a member brings forward a question of this kind, 
either in the shape of a verbal or written complaint, upon w hich he 
proposes to predicate some motion or resolution for the considera- 
tion of the house, or in the form of a motion, or resolution Tvhich he 
submits at once for the consideration of the house, it is for the pre- 
siding officer to decide,^ in the first instance, whether the member's 
statement, in whatever mamier it is brought forward, involves a ques- 
tion of pri-\Tlege, and as such is entitled to supersede other business. 

1501. But though a question of privilege is thus allowed to 
supersede all other business for the time being, it does not follow 
that no other business is to be done, luatil the matter of pri^•ilege is 
finally settled and determined. This would, in many cases, do 
more to impede, than to facilitate, the business of the house. It is 
only necessary, therefore, T\-hen a breach of privilege occurs, and is 
taken notice of by the house, or is brought to its knowledge, that 
the house should proceed to such immediate measures as it may 
think proper, in order to vhidicate itself or its members, or to remove 
all obstructions to its freedom of proceeding. When this has been 
done, whether the matter of privilege is thus settled, or only tem- 
porarily disposed of, the business thereby interrupted re\ives, and is 
resumed at the precise point where it was broken off. 

1502. It will be obviously impossible, though the leading cases 
give rise to no doubt, to describe beforehand, except in the most gen- 
eral and comprehensive terms, all the questions of this kind, w'hich 
may arise in a legislative assembly ; but some of the most important 
of those, which have occurred in the house of representatives of 
the United States, will serve to give an idea, perhaps an ade- 
quate one, of cases of this description. These cases will now be 
briefly mentioned, first, those in the affirmative, and then those in 
the negative. 

1503. It has accordingly been decided, in that assembly, that the 
following subjects, among others, may be entertained therein, as 
matters of privilege, that is to say : — Questions relating to the 
right of members and delegates to be qualified, including, of course, 
their credentials,- namely, members who are duly returned but were 
not present at the organization of the house,-^ members entitled to 
seats by the determination of a controverted election,'^ and mem- 

1 J. of H. 29th Cong. 1st Sess. 723, 724, 725; = Cong. Globe, X. 83. 

Same, 2d Sess. 136; Cong. Globe, XVH. 115, » J. of H. 31st Cong. 1st Sess. 190; Cong. 

187, 400, 401 ; Same, XVIH. 653 ; Same, XX. Globe, X. 349, 350 ; Same, XI. 1. 

110; Same, XXI. 1678. ' Ante, 475. 



Chap. VI.] questions of pkivilege. 583 

bers returned to fill vacancies ; ^ questions affecting the right of 
members to their seats, whether existing in the shape of charges 
contained in a petition ; "^ or in resolutions reported by the committee 
on elections, or otherwise, and pending in the house ; ^ questions 
relating to the character or conduct of members, as, for example, 
resolutions to censure or expel a member ; ^ the right of a member to 
defend himself against the charge in a petition lying on the table ; ^ 
the report of a select committee for investigating certain charges 
against a member ; *"' a complaint of one member against another for 
a supposed insult in the house, for words used by the former, in 
debate ; ^ and in considering and returning the letter of a public 
officer containing injurious reflections upon a member for words 
used by him in debate ; ^ questions relating to the conduct of per- 
sons in the employment of the house, as, for example, a resolution 
to dismiss one of its printers for charging a member with false- 
hood ; "' or to expel a reporter from the house for giving a false and 
scandalous account of a debate ; ^^ questions relating to the gen- 
eral or aggregate privileges of the house, as, for example, the 
remonstrance of a foreign diplomatic agent, to one of the heads of 
departments on the passing of a certain bill of congress ; ^^ a com- 
mon report that members had been threatened by a mob ; ^^ a resolu- 
tion for correcting the journal when it is not made up according to 
the facts ; ^^ and the correction relates to some matter then pending 
before the house ; ^"^ a false account in a public new^spaper, of what 
took place in the house on a certain occasion ; ^^ a feport, lying on 
the table, concerning a personal conflict between two members ; ^^ 
whether the journal of the house has been printed by its direction, 
according to the requisitions of the constitution ; ^"^ the report of a 
committee charging a witness before them with contumacy ; ^^ 
questions relating to an impeachment ; ^^ and to the report of a com- 
mittee appointed to investigate the conduct of the secretary of the 
treasury in reference to a certain matter.-^ 

1504. On the other hand, it has been decided by the same 

1 Gong. Globe, VI. 416 ; Same, XI. 1 : Same, ^ J. of H. 29th Cong. 2cl Sess. 320. 
XVII. 339. 11 J. of H. 27th Cong. 1st Sess. 320. 

2 Cong, Globe, VIII. 119. 12 J. of H. 30th Cong. 1st Sess. 712; Coug. 
8 J. of H. 31st Cong. 2d Sess. 119; Cong. Globe, XVIII. 653. 

Globe, VIII. 517, 551; Same, XVII. 187, 527; is J. of H. 31st Cong. 1st Sess. 1266. 

Same, XXI. 1678. 1* .J. of H. 32d Cong. 1st Sess. 146. 

* Cong. Globe, XI. 168. is Cong. Globe, XIII. 194. 

5 Cong. Globe, XI. 161, 162. w Cong. Globe, XIII. 577, 578. 

« Cong. Globe, XXI. 1789. " Cong. Globe, XV. 32. 

■> Cong. Globe, XIII. 277. 18 Cong. Globe, XX. 242. 

« Cong. Globe, XII. 101; Same, 102 i» J. of H. 27th Cong. 3d Sess. 159; Cong. 

« J. of H. 29th Cong. 1st Sess, 223, 224; Globe, XII. 144, 145. 

Cong, Globe, XV. 178. 20 Cong. Globe, XXI. 1019. 



584 LEGISLATIVE ASSEMBLIES. [PaUT VL 

assembly, that the follo^dng subjects are not entitled to be enter- 
tained therein, as matters of privilege, namely : — Questions 
relating to a member's having forfeited his right to a seat, in con- 
sequence of his acceptance of a disqualifying ofSce, such member 
having resigned his seat in the house ; ^ whether a pubhc officer has 
failed or refused to fm-nish information, as directed by an order of 
the house ; - unless such failm-e or refusal is in derogation of the 
honor or dignity of the house ; ^ caUing upon a public officer to 
furnish information forthwith ; ^ cognizance of a charge of corrup- 
tion of the other branch made therein by a member of the same ;^ 
proceeding with the election of a clerk, the house having aheady 
assigned a time for the election of that officer ; ^ devolving the 
duties of door-keeper temporarily upon the sergeant-at-arms ; ' the 
election of a door-keeper and postmaster of the house ; ^ a propo- 
sition to alter the journal when the same is correctly made up ; ^ 
the report of a committee authorized to report forthwith ; ^^ asking 
to be excused from serving on the committee ; ^^ explaining a 
charge in a public newspaper against a member ; ^^ concerning the 
mileage and pay of the claimant of a seat at a former congress ; ^^ 
requesting information of the president as to the conferring of dis- 
qualif}TJig offices upon certain members ;^^ a personal explanation.^^ 

1505. As the precedence, to which questions of privilege are 
entitled, is derived from the nature of the subject, and not from the 
form of the motion, these questions supersede not merely the 
motion pending, at the time, but the subject to which it relates, 
and aU questions connected mth or incidental to it, and pending at 
the same time. 

1506. It is immaterial what the evidence is, on which a com- 
plaint for a breach of privilege is founded, provided it satisfies the 
member making such complaint. The rule, on this subject, was 
laid do\\Ti in the foUoAving terms, m the house of representatives of 
the United States, by ]Mr. Speaker Winthi-op : — "If a member 
rose and stated a breach of privilege committed on himself or a 
fellow-member, whether arising upon facts within his own knowl- 
edge, or reaching him by rumor, Avhether growing out of debate in 
this house, or of circumstances wliich happened a thousand miles 

^ J. of H. 29th Cong. 2d Sess. 136, 436. 8 j. of H. 31st Cong. 1st Sess. 806. 

3 J. of H. 29th CoDg. 2d Sess. 229; Cong. ^ j. of H. 31st Cong. 1st Sess. 1266. 

Globe, XVII. 252, 253, 254. lo Cong. Globe, VHI. 236. 

3 Cong. Globe, XVII. 401. ii Cong. Globe^ XI. 222, 229. 

4 J. of H. 29th Cong. 2d Sess. 333. ^ Cong. Globe, XIH. 139. 

5 J. of H. 29th Cong. 2d Sess. 594. ^"^ Cong. Globe, XV. 821. 

6 J. of II. 31st Cong. 1st sess. 228. " Cong. Globe, XVII. 187. 
1 J. of H. 31st Cong. 1st Sess. 456. ^ Cong Globe. XX 108. 



Chap. VL] privileged questions. 585 

distant, the chair decided, that, upon the allegation being made, it 
was for the house to take up the question, and determine whether 
such a breach of privilege had occurred as to require its interposi- 
tion, and whether there was sufficient ground for its being enter- 
tained as a question of privilege." ^ 



2. Privileged Questions. 

1507. Questions of this description, are those to which prece- 
dence is given beforehand, over other questions of the same nature, 
by some general or special order of the assembly. The first and 
most numerous class of cases of this kind, the origin and nature of 
which have already been explained, at least, in part, consists of the 
orders of the day. When the consideration of a subject has been 
assigned for a particular day, by an order of the house, the subject 
so assigned is called the order of the day for that day. If, in the 
course of business, as commonly happens, there are several sub- 
jects assigned for the same day, they are called the orders of the 
day. 

1508. A question, which is thus made the subject of an order for 
its consideration on a particular day, is thereby made a privileged 
question for that day ; the order being a repeal, as to this special 
case, of the general rule as to business. If, therefore, any other 
proposition, with the exception of a question of privilege or some 
other privileged question, entitled to precedence, is moved, or arises.. 
on the day assigned for the consideration of a particular subject, a 
motion for the order of the day will supersede the question first 
made, together with all subsidiary and incidental questions con- 
nected with it, and must be first put and decided; for if the 
debate or consideration of that subject were allowed to proceed, 
it might continue through the day, and thus defeat the order. 

1509. But this motion, to entitle it to precedence, must be for 
the orders generally, if there is more than one, and not for any 
particular order ; if decided in the affirmative, the first question is 
suppressed, and the orders must be read and gone through wdth in 
the order in which they stand ; if in the negative, the resolution of 
the house is a discharge of the orders, so far as they interfere with 
the consideration of the subject, then before it, and entitles that 
subject to be first disposed of. 

1510. Besides the privileged questions above mentioned, which 

1 Cong. Globe, XVIII. 653. 



586 LEGISLATIVE ASSEMBLIES. [PaRT VI. 

are each the subject of a special order, a legislative assembly may 
provide by a general rule or order, that certain classes of questions, 
when they arise, shall be privileged in a particular manner. An 
instance of a privileged question of this kind is furnished by the 
rules and orders of the house of representatives in congress,^ in 
regard to the motion to reconsider, which is thereby declared to 
take precedence of all other questions, except a motion to ad- 
journ. 

1511. Orders of the day, according to the present practice, are, 
in general, the only privileged questions ; if, however, any pecuhar 
order should be adopted, in regard to a particular business, either 
as to the time or the manner of considering it, that question would 
become a privileged question, agreeably to the terms of the order. 
Thus, on the 5th of December, 1640, in the house of commons, a 
particular day was " peremptorily appointed for the debate of the 
subjects' property in their goods;" and it was at the same time 
ordered, that no other business whatever should then precede that 
business, and that the speaker should " put the house in mind of 
this order so soon as he should be in his chaii-." ^ So, during the 
proceedings in the house of commons on the reform bill. Lord 
Althorp gave notice, that in consequence of the length of time that 
had been occupied by the debate in the committee of the whole on 
the bill, he should move that on such days as the committee is 
appointed for, that order of the day should take precedence of all 
business whatever, including petitions. This motion was not per- 
sisted in, but no objection appears to have been made to it as 
irregular.^ 

1512. In the two houses of congress, besides orders of the day, 
which are established In virtue of the common parliamentary law, 
and privileged questions, which are made so by a general rule, 
orders of the above description are occasionally made, which have 
the effect, under the name of special orders or assignments, to over- 
ride or take precedence of all other business whatsoever.* Orders 
of this kiiid may be made in the manner agreed upon, and pointed 
out in the rules, or by the ordinary major vote. In the house of 
representatives, it is provided by a rule, that the order of business 
as estabhshed by the rules, shall not be changed except by a vote 
of at least two thirds ; and, in that assembly, a special order, (which, 
to have the effect above mentioned, must necessarily change the 

1 Cong. Globe, XX. 466. * J. of C. IV. 609; J. of H. 15th Cong. 1st 

2 Rush worth, IV. 85, 99. Sess. 167; Same, 23d Cong. 1st Sess. 785. 
8 Hans. (3), V. 89. 



Chap. VL] special orders. 587 

established order of business/ and operate to suspend the rides 
relating to business,-) made for that purpose, requires a majority of 
two thirds ; ^ if made by a majority only, the order so made will 
only have precedence over other business of the same class not 
made special.^ Of two special orders, for the consideration of 
different topics at the same time, the one first made is entitled to 
precedence over the other.-^ The business, which is thus made the 
subject of a special order, is to be proceeded with at the appointed 
time, and may be finished by doing whatever may be necessary to 
that end, under the order.*^ 

1513. On the arrival of the time set apart for the consideration 
of a special order, the business then in hand is not thereby sus- 
pended, as a matter of course," but the presiding officer may, if 
necessary, interrupt the member speaking, and announce the arrival 
of the time assigned for the consideration of the special order.^ He 
then waits for a motion relating to it, either to proceed with, or to 
postpone ; inasmuch as the assembly cannot be constrained, by any 
resolution previously taken, to proceed "with a particular matter at 
a given time, and may not then be in a situation to go on with the 
business in question. But whether announced by the presiding 
officer or not, any member ^ on the arrival of the time may move, 
and if necessary, may take the floor from a member for that pur- 
pose, to proceed with, or to postpone, the special order. If pro- 
ceeded with, it may, if necessary, occupy the rest of the daily sitting. 
If postponed, as it may be, by the ordinary major vote,^*^ either 
before ^^ or after ^^ its consideration is entered upon, it comes up as 
the special order, and not merely as a subject postponed,^^ at the 
time to which it is postponed. 

1514. If a special order is dropped, that is, not proceeded with 
at all, (and its friends have the residue of the sitting for the day to 
move it in,) it is not thereby dissolved,^* but comes up again in the 



1 J. of H. 27th Cong. 3d Sess. 355; Cong. XI. 935; Same, XIII. 224; Same, XV. 1164, 
Globe, XII. 338. 1165. 

2 J. of H. 31st Cong. 1st Sess. 1096, 1112; » J. of H. 24th Cong. 1st Sess. 882; Cong. 
Cong. Globe, IV. 77. Globe, VIII. 587. 

3 J. of H. 23d Cong. 1st Sess. 785; Cong. ^ J. of H. 29th Cong. 1st Sess. 1170. 
Globe, IV. 77. " J. of H. 20th Cong. 2d Sess. 182; Same, 

* Cong. Globe, VHI. 121. 29th Cong. 1st Sess. 1170; Reg. of Deb. IX. 

6 Cong. Globe, VIII. 325. Part 2, 1756; Cong. Globe, XV. 1164, 1165; 

« Cong. Globe, XIII. 283. Same, XVII. 382, 383. 

1 Cong. Globe, XI. 935. « Cong. Globe, XIII. 122. 

» J. of H. 20th Cong. 2d Sess. 182; Same, i^ Cong. Globe, VIII. 114. 

Slst Cong. 1st Sess. 1096, 1112 ; Cong. Globe, " J. of H. 27th Cong. 386. 



588 LEGISLATIVE ASSEMBLIES. [PAET VI. 

order of time ;^ and when proceeded with, and while it is executing, 
no other busuiess,^ not even a suspension of the rules,'^ is in order. 
If finished before the time for adjournment arrives, the business 
thereby suspended revives again and proceeds as before ; if un- 
finished at the time of an adjournment, and no other disposition of 
the matter is made, it will go over, by means of the adjournment, 
as the unfinished business of the day, on which the adjom-nment 
takes place, and as such it is entitled to take precedence of another 
special order * for that day. 

1515. The questions, above described, wiU take precedence in 
the following order. When the time arrives, for proceeding vdtla. 
the orders of the day, according to the rule or the custom, or the 
particular order of the assembly, they ^vill be entitled to precedence, 
in the manner above described, over ordinary business. Merely 
privileged questions wiR take such precedence, among themselves, 
as they are entitled to by the rules of the assembly creating them ; 
but, in general, when one privileged question is under consideration, 
it cannot be displaced to make way for another of the same kind.^ 
Both these must give place to a special order when the time arrives 
for its consideration. All these, however, are mere matters of busi- 
ness, and must yield to a question of privilege. The motion to 
adjourn, fi-om its very nature, though it is commonly so provided 
by a rule, takes precedence of them aU, and must be first put to the 
question. 

1516. The presiding officer is not precisely bound, except in vir- 
tue of some rule of the assembly, as to what bills or other matters 
shall be fijst taken up, but is left to his own discretion, unless the 
assembly, on a question, decide to take up a particular subject; a 
settled order of business, however, is necessary for Ms government, 
and to restrain individual members from calling up favorite meas- 
ures, or matters under their special patronage, out of their just turn. 
It is useful, also, for directing the discretion of the assembly, when 
it is moved to take up a particular matter to the prejudice of others 
having a prior right to its attention, in the general order of business.^ 
But this depends entirely upon the nature of each assembly, and 
upon the character and importance of its business. In every assem- 



1 J. of H. 26tli Cong. 1st Sess. 253. » J. of H. 32d Cong. 1st Sess. 969; Cong. 

2 J. of H. 3l5t Cong. 1st Sess. 254, 333. Globe, XXI. 1535. 

s Cong. Globe, XVIL 439. s Jefferson's Manual, Sec. XIV. 
* Eeg. of Deb. XI. Part 1, 919; Cong. Globe, 

^^^. 121. 



Chap. VL] general course and order of proceeding. 589 

bly, the business of which is considerable, an order of business is 
indispensable. In the house of commons this is established partly 
by custom, and partly by rule. The distinction is there recognized 
between private and public business. In both houses of congress, 
there is an established order of business. In the house of represent- 
atives, particular days, and particular hours of each day, are de- 
voted to the consideration of particular classes of business. The 
same general purpose is further promoted in that assembly by 
variously restricting debate. This subject wiU be considered at 
length in the fifth section of this chapter. 



Section IIL Of Motions relating to the General Course 
AND Order of Proceeding. 

1517. Motions connected with the general course of business 
and proceeding, when moved in reference to any pending matter, 
imply a necessity for their immediate determination, and conse- 
quently supersede or interrupt the subject under consideration at 
the time, and are to be first put to the question. 

1518. The most important motion of this description is the 
motion to adjourn, which of necessity takes precedence of all other 
pending questions, and may be made and put at any time, ex- 
cept immediately after the same motion has been made and neg- 
atived. 

1519. A motion of this kind, which was in use when the sittings 
of parliament were confined to the daytime, was, that candles be 
brought in, which, of course, required an immediate determination. 
At that time, it was the invariable custom to bring every debate to 
a close with the sitting for the day on which it took place; so 
that the motion for candles was sometimes looked upon as equiv- 
alent to a motion to prolong the debate, and was not always de- 
termined, without discussion and division. In more modern times, 
however, it seldom happens that the debate on any question of 
importance is concluded on the same day ; and the sittings of both 
houses now take place almost wholly in the night time ; and in 
the house of commons it is a standing order, first adopted in 
1717, " that when the house, or any committee of the whole house, 
shall be sitting, and daylight be shut in, the sergeant-at-arms do 
take care that candles be brought in without any particular order 
for that purpose." ^ 

1 May, 222. 

50 



590 LEGISLATIVE ASSEMBLIES. [PaET VL 

1520. It would be obviously impossible, from the very nature of 
motions of this description, to enumerate all that might occur ; the 
following are some of the more common, and ^nR serve to give 
an idea of the general character of the whole, namely : that mes- 
sengers from the other house, ha\'ing been announced, be called in ; 
that a particular member be first heard, where two or more rise at or 
about the same time, and the speaker's determination as to which 
of them shall speak, is not acquiesced in ; that a particular mem- 
ber withdraw on a matter arising or being brought forward which 
affects him personally ; that a member be allowed to speak sitting ; 
that a question be di^dded, either on the suggestion of a member, 
or on motion ; ^ that a member be allowed to speak a second time 
in the same debate ; and that there be a call of the house. To the 
same head belong, also, resolutions exonerating the speaker from a 
charge of partiality ,2 or impugning his conduct,^ or charging the 
clerk vnth misconduct* in regard to a particular matter then under 
consideration. 



Section IV. Oe the Order, Succession", aitd Precedence, of 
• Motions, as established by Rule in this Country. 

1521. In many of the American legislative assemblies, it is the 
practice, by a special rule, to specify both what motions shall be 
used, and the order in which they are to be moved, for the disposi- 
tion of the business before the assembly. The rule of the house of 
representatives of the United States, wdiich has been extensively 
copied in other legislative bodies, is as follows : " When a question 
is under debate, no motion shall be received but to adjourn, to he 
on the table, for the previous question, to postpone to a day certain, 
to commit or amend, to postpone indefinitely ; which several mo- 
tions shall have precedence in the order in which they are arranged." 
In the particular application of this rule, the following points are 
to be observed. 

1522. I. A subject is sufficiently under debate to come properly 
within this rule, when it has been proposed from the chair as a 
question for the decision of the house. 

1523. II. The motions enumerated in the rule are understood 
and apphed in their common parliamentary sense, and do not ad- 
mit of any other meaning or extent. Thus the first three, namely, 

1 Comm. Jour. XXXH. 707. * J. of H. 26th Cong. 1st Sess. 1242. See 

» Hans. (1), X. 1160 to 1170. also, Cong. Globe, XH. 244. 

« J. of H. 3l5t Cong. 1st Sess. 713, 716, 738. 



Chap. VL] general course and order of proceeding. 591 

to adjourn, to lie on the table, and for the previous question, may 
be made in their simplest form, and do not admit of any amend- 
ment or alteration ; the motion to postpone to a day certain may 
be amended so as to substitute one day for another ; the motion to 
commit may bear the form of recommitment, and be accompanied 
or not with instructions ; the motion to amend is susceptible of 
alteration by amendment ; but the motion to postpone indefinitely, 
is already in its simplest form, and will not admit of any amend- 
ment. 

1524. III. These motions, except as is stated in the preceding 
paragraph, cannot be applied to one another, and, therefore, a mo- 
tion to amend cannot be ordered to lie on the table, or be indefi- 
nitely postponed, by itself, but coheres to the motion which it is 
proposed to amend, and may be ordered with it to lie on the table, 
or to be postponed. 

1525. IV. When one of these motions is made, none of those 
which stand behind it on the list can any longer be made, while it 
is pending, and it supersedes for the time being all those which 
are then made, and must be first put to the question. If this mo- 
tion should be decided in the negative, the nc xt preceding pending 
motion is to be put, and so on until some one prevails, or the prin- 
cipal question is put. Thus, if a question is pending, which it is 
moved to postpone indefinitely, and then a motion is made to 
amend, this latter motion supersedes the former, and is itself super- 
seded by a motion that the principal question be ordered to lie on 
the table. When this motion is made, none of those standing be- 
hind it can be made, but it may itself be superseded by that which 
stands before it on the list. The pending questions are then to 
be taken in the same order in which they were moved : first, the 
motion pending to lie on the table ; if that is negatived, then, sec- 
ond, the motion to amend ; and if that is negatived, then, third, the 
motion to postpone indefinitely ; and if this does not prevail, then, 
lastly, the principal question. 

1526. V. The motion for the previous question is an exception 
in one respect to this proceeding : if decided in the affirmative, the 
main question is to be taken at once ; if in the negative, the main 
question is suspended for the day, so that in whichever way it is 
decided, it disposes of the main question for the time being, and 
leaves no other question to be taken. 



592 . LEGISLATIVE ASSEMBLIES. [PaET VL 



Section" V. Of the Get^eeal Course or Order of Busnraiss ni 
a Legislative Assembly. 

1527. An established order of business is so necessary in every 
assembly, to the orderly despatch of what comes before it, that 
such an order prevails to a greater or less extent in every assembly ; 
and, in some, it gives rise to a very complicated and artificial 
system of procedure. The order of business estabhshed by each 
assembly v,dll, undoubtedly, be peculiar to itself. The systems 
adopted by the tvvo most important and celebrated legislative 
bodies in the world, the house of commons in England, and the 
house of representatives of the United States in this country, which 
are very different from each other, are respectively as follows. 

1528. In the house of commons, " The house proceeds each 
day with, 1. Private business ; 2. Public petitions ; 3. Giving no- 
tices of motions ; 4. Motions for leave of absence ; 5. Unopposed 
motions for returns ; 6. Orders of the day and notices of motions 
as set dovcm in the order book.^ 

1529. According to the present estabhshed order of business in 
the house of representatives of the United States, at the hour fixed 
for the daily meeting of the house, the speaker takes the chair, and, 
as soon as a quorum appears, causes the journal of the preceding 
day to be read. Committees are then called upon for reports, the 
call being commenced where it was left off on the preceding day, 
except on each alternate JMonday, and on Fridays and Saturdays. 
One hour is devoted in this way, and it is then in order to move to 
proceed to the business on the speaker's table, which being decided 
affirmatively, that business is disposed of accordingly. Several 
days often interv^ene between motions to proceed ^dth the business 
on the speaker's table. The motion to go into committee of the 
whole . on the state of the Union is in order at any time, and is 
sometimes submitted immediately after the journal is read, but 
usually after one hour has been devoted to the reports of commit- 
tees ; and this motion being agreed to, the house generally remains 
in committee of the whole until just before the adjournment for 
the day. On each alternate Monday, the regular order of business, 
as soon as the journal is read, is the calling of the States for resolu- 
tions. But motions to suspend the rules, being only in order every 
Monday, the day is usually consumed in the consideration of such 

iMay, E. 0. etc. 101. 



Chap. VL] general course and order of proceeding. 593 

motions, to the exclusion of the regular order of business, unless, as 
often happens, the house resolves itself into the committee of the 
whole. Fridays and Satm'days are set apart for the consideration 
of private business, and usually, if there are no private bills on the 
speaker's table, or special order, the house resolves itself into a com- 
mittee of the whole on the private calendar. The business on the 
speaker's table, when proceeded with, is taken up in the following 
order: 1. Messages and other executive communications; 2. Mes- 
sages from the senate, and amendments proposed by the senate, 
to the bills of the house ; 3. Bills and resolutions from the senate 
on their first and second reading; 4. Engrossed bills, and bills 
from the senate on their third reading ; 5. Bills of the house, and 
from the senate on their engrossment ; and, when those are dis- 
posed of, 6. Orders of the day. 

50* 



LAW AND PRACTICE 



OF 



LEGISLATIVE ASSEMBLIES. 



PART SIXTH. 

OF THE FORMS AND METHODS OF PROCEEDING IN 
A LEGISLATIVE ASSEMBLY. 



SECOND DIVISION. 

ORDER IN DEBATE. 



1530. The rules for the conduct of debate, which constitute the 
subject of this division of the sixth part, divide themselves into two 
branches, namely : first, those which are to be observed by members 
addressing the house ; and, second, those which regard the behavior 
of members who do not engage in the debate.^ The latter branch 
is of comparatively small extent. The former, under which alone 
the subject of order in debate is usually comprehended, embraces 
three general inquiries, namely : first, what constitutes a debate ; 
second, when and under what ckcumstances a member may address 
the house ; third, what may or may not be said by a member, or 
introduced by him into his remarks, in addressing the house. The 

» May, 248. 

'595) 



596 LEGISLATIVE ASSEMBLIES. [PaET VI. 

first inquiry relates, also, to the members who are to speak, and, to 
the personal deportment of members in speaking. The second is 
embraced under the three rules, that a member can speak only to a 
question ; not more than once ; and not after the question is put to 
the house. The rules, which form the subject of the third inquiry 
relate to the topics to be introduced ; to the sources from which a 
member speaking is to derive the matter of his remarks ; the preser- 
vation of order and decorum among the members ; the preservation 
of harmony among the several branches ; regularity of proceeding ; 
to the respect due from the members to the assembly ; and to the 
respect due to existing laws and institutions. The necessity of 
enforcing these rules leads naturally to the inquiry as to the pro- 
ceedings with reference to disorderly or unparliamentary lan- 
guage. 

1531. The foregoing analysis suggests the propriety of consider- 
ing the several subjects which faU into this division under the fol- 
lov^dng heads, which will each form the matter of a distinct chapter, 
namely : — I. What constitutes a debate, and herein of the mem- 
bers who are to speak, and of their personal deportment while 
speaking ; XL Of the rule that no member is to speak, miless to a 
question aheady pending, or to introduce a question ; III. Of the 
rule that no member is to speak more than once to the same 
question ; IV. Of the rule that a question is open for debate until 
it is fuUy put on both sides ; V. Of the rules relating to relevancy 
in debate ; VI. Of the rules relating to the sources from which the 
statements, introduced by a member in debate, are derived ; VII. Of 
the rules relating to the preservation of order, decency, and har- 
mony among the members; VIII. Of the rules relating to the 
preservation of the harmony and independence of the several 
branches of the legislatm-e ; IX. Of the rules relating to regularity 
of proceeding ; X. Of the rules relating to the respect due from 
the members to the house to which they belong, to its powers, acts, 
and proceedings, and to the government and laws of the country ; 
XL Of proceedings with reference to disorderly or unparhamentary 
words, or irregularity in debate; XII. Rules for the conduct of 
members present in the house during a debate. 



Chap. L] speaking est debate, 597 



CHAPTER FIRST. 

WHAT CONSTITUTES A DEBATE, AND HEKEIN OF THE MEMBERS 
WHO ARE TO SPEAK, AND OE THEIR PERSONAL DEPORTMENT 
WHILE SPEAKING. 

1532. When a motion is regularly made and seconded, and pro- 
posed ^ as a question from the chau, " every member is then at 
liberty to debate with freedom upon it, and to agree or disagree to 
it, as he may think reasonable " and proper.^ But, though the latter 
part of this principle is universally true, as every member may 
agree or disagree to whatever question is put to the house ; the 
former admits of an exception in regard to those questions, which 
require unanimous consent. Questions of this description, as, for 
example, on giving leave to withdraw a motion,'^ are not properly 
debatable, at least on the part of the negative ; for if any one 
member objects, the question is as effectually negatived, as if a 
majority of the members were opposed to it ; so that debate on that 
side would be a mere waste of time. 

1533. The term debate, in its strictest sense, is applicable only to 
what is said on the one side or the other of a question which the 
house is to decide by a vote.^ In a broader sense, it embraces every 
thing which is said in the house by members, whether upon a ques- 
tion pending, or in reference to any other proceeding, matter, or 
business whatever. The rules of order, by which the speaking of 
members is regulated, together with the exceptions to those rules, 
having relation to debate in its broadest signification, the subject 



1 Cong. Globe, VIII. 150. particular manner. All these different Ivinds 

* Comni. Deb. VIII. 201. of restrictions are found in tlie rules and orders 
8 Hans. (1), XIX. 437. of the lower branch of congress. In that 

* In the rules and orders of the legislative body, motions to adjourn, to fix a day to 
assemblies of this country, debate is variously which the house shall adjourn, to lie on the 
restricted. Sometimes it is precluded as to table, and for the previous question, all ques- 
certain motions, without regard to the subject; tions relating to the priority of business to be 
sometimes it is prohibited as to certain topics, acted upon, and all incidental questions o^ 
without regard to the manner in which tliey order arising after the previous question Is 
arise; and sometimes the restriction is attach- moved, are to be decided without debate. 

ed to certain topics, provided they arise in a 



598 LEGISLATIVE ASSEMBLIES. [PaRT VL 

of order in debate is now to be considered in the most extended as 
well as the narrowest sense of the term. 

1534. It is not necessary, in order to render words disorderly, that 
they should be uttered in debate, strictly so called ; if used in any 
parliamentary proceeding, as in making a motion, or answering a 
question, or stating a fact, or even in reading from a book or paper,^ 
they are equally subject to the animadversion of the house, as 
disorderly. All language, not addressed to the house, in a par- 
liamentary course, must be considered as mere noise and disturb- 
ance. 

1535. When a member desires to address the house, either in 
reference to a pending question, or for any other purpose, he must 
first obtain possession of the floor, in the manner aheady adverted 
to, when considering the subject of motions. If one member only 
rises to speak, he, of course, is to be heard. If tvv^o or more rise at 
about the same time, and claim the attention of the house, the 
general rule, as to which of them shaU speak, assigns the preference 
to him who was first up, to be determined by the speaker or the 
house. In the appHcation of this rule, however, there are certain 
excepted cases in which one member has a right to proceed in 
preference to others, and certain other excepted cases, in which, by 
the indulgence of the house, though not as a matter of right, it is 
customary to assign the preference on other grounds. The excepted 
cases of the fijst kind occur, when the subject, to w^hich a member 
rises to speak, is one of paramount importance, as a matter of privi- 
lege, or a question of order ; in which cases, he is entitled to be 
heard in preference to other members. These cases must not be 
confounded with those \s^here a member merely rises to propose a 
motion which takes precedence of the motion originally made, in 
which case he is not entitled of course to preference over other 
members. The excepted cases of the latter kind are those of, 
1st, the original mover of a proposition, on its being first debated ; 
2d, a new member on his first rising to address the house ; and, 3d, 
on resuming an adjourned debate, the member who last rose to speak 
when the debate "was adjourned. These classes of cases, though 
estabhshed with peculiar reference to the practice of the two houses 
of the British parliament, embrace substantially the grounds upon 
which preferences are usually allowed in awarding the floor in our 
legislative assemblies, and wiU constitute the matter of the first 
section of this chapter, which will be concluded with a second sec* 

1 Haus. (3), XVI. 217. See also Reg. of Deb. IV. Part L 1420. 



Chap. I.] speaking in debate. 599 

tion concerning the general deportment of members in speaking. 
There are also other gi-ounds upon which preferences are allowed, 
irrespective of the peculiar character of the parties. 



Section I. Of the Grounds upon which Preferences are 

ALLOWED IN ASSIGNING THE FlOOR TO PARTICULAR MEMBERS. 

Exception L The original Mover of a Proposition on its being 

first debated. 

1536. In the house of lords, it was said by Lord Bathurst, in the 
year 1733, that " when any lord makes a motion, upon which there 
follows any order or resolution, and a day is appointed for taking 
that order or resolution into consideration, it has always been the 
custom, out of complaisance to the lord who made the motion, to 
hear him first ; because it is to be expected that he has something 
to say, or some further motion to make, in consequence, or in 
explanation, of the motion he had made ; " ^ and, on another occa- 
sion, in 1781, the lord chancellor (Thurlow) observed, "that it was 
always customary, when any bill was brought into that house, for 
abrogating an old law, or enacting a new one, for the person who 
moved the order of the day, if the bUl had not been previously 
debated in some former stage, to assign his reasons, (that is, the 
necessity, expediency, or policy, of the alteration,) for wishing to 
change the law, in the particular instance." ^ 

1537. In the house of commons, a similar usage appears to pre- 
vail : thus, where on the order of the day for the second reading of 
a biU being read, a motion was made that the biU be now read a. 
second time ; and a member rose to oppose the motion, the speaker 
(Mr. Abbott) " suggested the propriety of first hearing the member 
who brought in the biU in support of it as being consonant to prac- 
tice in cases where there was a difference of opinion entertained ; " 
and this course was accordingly adopted.^ 

1538. According to the practice which prevails in our legisla- 
tive assemblies, the mover of a proposition having obtained the 
floor for that purpose, and having submitted his proposition, is en- 
titled to retain possession of the floor, until his motion is seconded 
and stated by the chair ; and then to proceed with a speech or 



1 Lords' Deb. IV. 139. » Pari. Reg. LXXH. 265 

« Pari. Reg. XIX. 185, 190. 



600 LEGISLATIVE ASSEMBLIES. [PaRT VI. 

make a motion, or do whatever else can only be done by a member 
in possession of the floor, unless he volmitarily reUnquishes it, or 
does some act indicative of his intention to abandon the floor.^ 
Thus, where the mover of a proposition, although he had remained 
standing whilst the clerk -was reading it, did not claim the floor 
until after another member had addressed the chair, made a motion, 
and the question thereon had been stated, it was held on appeal, 
that the first had thereby lost his right to the floor ; ^ so, where one 
having the right to the floor, instead of claiming it, turned from the 
speaker, and walked up the aisle, whereupon another member was 
recognized as entitled to the floor, the former was held thereby to 
have lost it ; ^ and so where a member having a right to the floor, 
instead of claiming it, when the subject was first introduced, did 
not do so until several members had risen, and a modification of 
the pending resolution had taken place, it was held that he had 
lost his right to the floor ; * but resuming one's seat merely, whilst 
the clerk is reading his proposition, unless it is done with an in- 
tention to abandon the floor, and suffering another to address the 
chair, before the claim is renewed, is not ordinarily supposed to be 
equivalent to such an abandonment.^ 

1539. The reporter of a measure, from a committee, is entitled to 
the floor, not only as the mover of a proposition, to make his re- 
port and take the initiatory steps for its consideration, but also sub- 
sequently to give the measm-e in question, a bill, for example, 
such disposition as the committee may have directed.^ The same 
privilege belongs also to the member upon whose motion a com- 
mittee, as, for example, the committee of the whole, is discharged 
from the further consideration of a given measure, and the same 
is thereby brought directly before the house.'' On the other hand, 
a member is not entitled, as a matter of course, to the floor, on 
a bill or other measure ordered to be reconsidered, even though 
the reconsideration takes place for the purpose of enabling the 
mover to make a specific amendment, which is read to the house 
for information.^ 

1540. If the subject thus introduced is not at once considered, 

1 J. of H. 31st Cong. 1st Sess. 1336 ; Cong. » J. of H. 21st Cong. 1st Sess. 758. But see 
Globe, XX. 238, 261. Cong. Globe, X. 212. 

2 J. of H. 24th Cong. 1st Sess. 749; Cong. » j. of H. 27th Cong. 3d Se*j. 211. 

Globe. XX. 389. f J. of H. 30th Cong. 2d Sess. 247 ; Cong. 

3 J. of H. 29th Cong. 1st Sess. 366, 641. Globe, XX. 260, 261. 

* Reg. of Deb. XII. Part 2, 2178, 2179. s j. of H. 26th Cong. 1st Sess. 246; Cong. 

Globe, Vm. 153, 155. 



Chap. L] speaking in debate. 601 

but goes over to some future day, whether by mere lapse of time, 
or by adjournment of the house, or by postponement of any kind, 
whenever it is brought forward again, the same persons will be 
entitled to the floor, and to proceed in the same manner, as if the 
business had been proceeded with when it was originally intro- 
duced. K the mover of the proposition chooses, he may waive his 
privilege in the first instance, and close the debate.^ 

1541. Whether, and to what extent, the right to the floor will be 
restrained, extended, or regulated, by custom or rule, in any par- 
ticular assembly, must, of course, depend upon the size, the amount 
of business, and the degree of competition which exists among the 
members, of each assembly. In the house of representatives of 
congress, it is provided by rule, that a member, reporting the meas- 
ure under consideration from a committee, may open and close 
the debate ; and this privilege is so strictly regarded, that it even 
overrides the previous question. In the same body, also, it is 
provided by rule that the mover, proposer, or introducer of the mat- 
ter pending shall be permitted to speak in reply, after every mem- 
ber choosing to speak shall have spoken. 



Exception II. A new Member^ on his first rising to address the 

House. 

1542. It is a common courtesy in both houses of parliament, 
when several members rise at once, for those who have before ad- 
dressed the house in debate, to give way to a new member who 
has not yet spoken. K several new members should happen to 
claim the attention of the house at the same time, the point of 
precedence could only be settled by an application of the ordinary 
rule. In our legislative assembhes, though new members are 
always treated with courtesy and kindness, and with some degree 
of indulgence,^ there is no custom or rule in their favor as to the 
time or manner of speaking. 

» Cong. Globe, XI. 192. » Cong. Globe, m. 264. 

51 



602 LEGISLATIVE ASSEMBLIES. [PaUT VI. 



Exception III. The Member wlio rose last to speak^ when the Debate 

was adjourned. 

1543. It appears to be the usual practice in the house of com- 
mons, on resuming an adjourned debate, to give the preference, in 
addressing the house, to the member vAio rose the last to speak 
Vi^hen the debate was adjourned. According to the practice in our 
legislative assemblies, a member Tvho is speaking, and gives "way to 
another to move an adjournment of the house, or a postponement, or 
that the committee of the whole rise, which takes place, is entitled 
to the floor to proceed with his debate when the subject is again 
brought forward.^ The same effect is produced where the member 
speaking, not having finished his speech, himself makes the motion 
to adjourn, or to postpone, or that the committee rise. So, the floor 
being unoccupied, the member upon whose motion an adjournment 
or postponement takes place, or the committee rise,^ will be entitled 
to the floor upon renewing the debate. 

Exception IV. Members entitled to the Floor on grounds of Pref- 
erence^ irrespective of their peculiar Character. 

1544. In the foregoing cases, the floor is adjudged to one member 
in preference to others, on the ground of the peculiar character in 
which the former addresses the house. There are others, also, in 
which the grounds of preference do not depend upon the peculiar 
character of the member to whom the floor is assigned, but because 
the member or members competing for the possession of the floor 
are not in a proper situation to claim it. The principal cases of 
this description are those in which the member addressing the chair 
remains sitting and does not rise firom his seat at aU ; ^ where the 
member rises from the area in front of the chair, or from one of the 
aisles, and not from a seat,^ though it is not necessary that he 
should occupy his own, but any seat is sufficient for the purpose ; ^ 
or where a member, having aheady spoken in the debate, cannot be 
permitted to speak again or to make a motion ^ so long as any 

1 J. of H. 24th Cong. 1st Sess. 749; Eeg. of ^ Cong. Globe, YIII. 68; Same, XIII. 677. 
Deb. IX., I. 462; Cong. Globe, III. 264; Same, ^ Cong. Globe, VIII. 150; Same, XI. 353. 
Vni. 290; Same, 510. « Cong. Globe, XIH. 385; Same, XVIII 

2 Cong. Globe, XVI. 773. 519. 

3 J. of H. 29th Cong. 1st Sess. 802, 803; 
Same, 32d Cong. 2d Sess. 405. 



Chap. L] speaking in debate. 603 

other member desires to speak ; but in all these cases, the floor 
must be claimed when the irregularities take place ; and in the 
last, motions are often made and leave granted to the members 
in question to proceed without the special leave of the house.^ 

1545. In these cases, it is not customary for any order of the 
house to be made, or any question to be proposed ; the fact which 
entitles the member to indulgence being brought to the knowledge 
of the house by some member, or suggested by the speaker, the 
member is then allowed to proceed. 

1546. Anciently, the right of one member in the house of com- 
mons to speak in preference to another in debate on a bill, might 
be determined by the rule agreed to June 6, 1604,^ " that if two 
stand up to speak to a bill, he against the bill, (being known by 
demand or otherwise,) to be first heard ; " but it is doubtful whether 
this rule would not now be treated as obsolete.^ 

1547. A member Avho is in possession of the floor may yield it 
to another on request for a temporary purpose, and upon a com- 
pact that it shall be restored to him whenever that purpose shall be 
accomplished. If the floor is yielded for a motion to postpone or 
adjourn,^ or that the committee rise,'^ and no adjournment or post- 
ponement takes place, or the committee refuses to rise, the floor is 
to be restored to the member originally in possession of it, whose 
right thereto will be recognized and enforced by the speaker or 
chairman. The same is true, if a member in possession of the floor 
yields it for the purpose of explanation ; but if relinquished for any 
other purpose, as, for the making or withdrawal of a motion or 
amendment, the making of a report, or the reading of a speech, — 
such yielding is held to be unconditional, the compact therefor can- 
not be recognized or enforced by the speaker, and the floor is free 
to any other member.^ 

1548. When a member in possession of the house has concluded 
his remarks and resumed his seat, it is then competent for any 
other member to entitle himself to address the house by rising and 
presenting himself to the notice of the speaker, and obtaining pos- 
session of the house in the manner already described. At the con- 
clusion of every speech, the question pending is open to debate as 

1 Reg. of Deb. Part 1, 1337; Same, III. Same, IX. Part 1, 462; Cong. Globe, III. 264, 
S02. Same, VI. 487; Same, VIII. 131; Same, 173, 

2 Comm. Jour. I. 232. 174, 290; Same,. IX. 103; Same, XL 687, 

3 May, 243. Same, XIII. 644; Same, XV. 78; Same, 
* Reg. of Deb. IV. Part 3, 300. XVI. 199; Same, XX. 239; Same, XXI. 
6 Cong. Globe, XXI. 964. 1437; Same, 1459; Same, 1535; Same, 1687; 
•Reg. of Deb. HI. 1045; Same, V. 871; Same, XV. 14. 



604 LEGISLATIVE ASSEMBLIES. [PaRT VI. 

before, until every member has spoken who desires to speak ; nor 
does the circumstance that a member has previously risen to ad- 
dress the house entitle him to any preference over others ; but 
whenever an opportunity occurs for addressing the house, aU the 
members stand upon the same footing of perfect equality as when 
the debate conmienced. 



Sectiox II. Persoxal Deportmext of Members ix Speaktxg. 

1549. The rules of order, applicable to debate, relate chiefly to 
the time when and the circumstances under which a member may 
speak, or to what may or may not be said by a member in addi-ess- 
ing the house. There are some rules, however, relating to the per- 
sonal depoiiment of a member while speaking, which, though 
aheady treated of in another place, reqmre to be briefly adverted 
to in this connection. 

1550. I. In both houses, it is a general rule, that a member, in 
addressing the house, is to speak from his place, and not from any 
of the passage ways, or at the table.^ The place of a member is 
that part of the house where he has his seat, and in which he gives 
his vote ; "^^hich, in the commons, is the seat occupied by him for 
the time being, and, in the lords, the bench appropriated to the 
rank of nobility to which he belongs. In the latter house, the 
rule appears never to have been stiictly enforced, on account of the 
greater inconvenience which would result from such an enforce- 
ment ; the members being allowed to speak from any of the seats 
indiscriminately, or from the table, if they have papers to read.^ In 
the commons, the rule only requkes that a member should speak 
from some seat, in the house or the gallery .^ In the legislative 
assemblies of this country, although the seats of members therein 
are usually assigned for the whole session, the same principles 
prevail.^ 

1551. II. In both houses, it is a rule, that, when a member 
addresses the house in debate, he is to stand up in his place and 
speak uncovered. The first part of this rule, which is founded in 
the respect due firom the members to the assembly, admits of an 



1 Hat5eU,n. 108; Hans. XV. 178; Same, (3), Same, 32d Cong. 2d Sess. 405; Reg. of Deb, 
XLI. 1294, 1295. VIII. Part 3, 3910 ; Cong. Globe, \TIL 68 

2 Hans. (3), XLL 294, 295. Same, 150; Same, XI. 353; Same, XHI. 677 

3 Hatsell, n. lOS. Same, XI. 282. 
* J. of H. 29th Cong. 1st Sess. 802, 803; 



Chap L] speaking in debate. 605 

exception only in cases of sickness or infirmity ; when the indul- 
gence of a seat is frequently allowed, at the suggestion of a mem- 
ber, and with the general acquiescence of the house.^ This 
indulgence may be either special, for some particular occasion, or 
general, whenever the member desires to speak. When a member, 
who is sick or infirm, is rising to speak, and another wishes to 
move that he be indulged to speak sitting, he entitles himself to 
make the motion for that purpose, by rising to order.^ In the com- 
mons, another exception to the rule occurs, when a question arises 
whilst the house is dividing; in which case, the members are 
allowed by the speaker to speak sitting, and covered, in order to 
avoid even the appearance of a debate.^ 

1552. III. In the house of lords, when a member speaks, he 
addresses his speech " to the rest of the lords in general." * In the 
commons, a member when speaking addresses the speaker alone, 
and it is irregular for him to direct his speech to the house in gen- 
eral, or to any party in it, or to any individual member.^ The dif- 
ference between the two houses in this respect, may perhaps be 
attributable, at least in part, to the fact, that the presiding officer 
of the lords is not necessarily, and frequently is not in fact, a mem- 
ber of the body over which he presides. In this country, the prac- 
tice of the house of commons, in this respect, is generally, if not 
universally, observed. Members in speaking address themselves to 
the presiding officer alone by the title of his office, as Mr. Speaker, 
or Mr. President. 

1553. IV. It is a general rule, in both houses, that a member, 
in addressing the house, is to do it orally and not by means of a 
UTitten discourse ; for the reason, as stated by Mr. Fox, " that, if 
the practice of reading written speeches should prevail, members 
might read speeches that were written by other people, and the 
time of the house be taken up in considering the arguments of 
persons who were not deserving of their attention." ^ 

1 Hatsell, II. 107; Romilly, 269, 270. When United States on the 9th of April, 1818, it was 

Sir. Pitt made his famous speech, in 1793, unanimously agreed to suspend in his favor, 

against the peace, he was permitted, on ac- the rule providing that a member, when he 

count of his infirmities, to speak sitting. See speaks, shall address the chair standmg in his 

also the cases of Lord Wynford, Lord's Jour, place. J. of H. 15th Cong. 1st Sess. 340. 

LXIV. 167, and of Mr. Wynn, 9th March, 1843, " Hans. (3), LXIII. 208, 209. 

Hans. (3), LXVII. 658. On a former occasion, ^ ^ quaker is allowed to speak covered. 

May 6, 1842, Hans. (3), LXHL 208, 209, the lat- * Lords' S. 0. No. 14. 

ter gentleman declined the indulgence. When ^ Hatsell, H. 107; May, 240. 

tlie Hon. Samuel W. Dana, senator from Con- « Hans. (1), VII. 188, 207, 208. 
necticut, took his seat in the senate of the 

51* 



606 LEGISLATIVE ASSEMBLIES. [PaET VL 

1554. But though this has always been the rule, it appears, in 
the earlier periods ^ of parliamentary history to have been frequently 
dispensed with, as a matter of " common courtesy ; " ^ and, in 
modern times, members have been occasionally indulged with 
reading their speeches.^ On the occasion of the charges brought 
forward in the house of commons, against the earl of St. Vincent, 
in the year 1806, the member by whom they were introduced, hav- 
ing thought proper to read nearly the w^hole of his very long speech, 
on concluding it, Mr. Speaker Abbott said, " that the house had 
not judged it necessary to interrupt the honorable gentleman, and 
therefore he had not interfered lest in him it might seem ungracious ; 
he begged, however, to inform the honorable gentleman, that such 
an indulgence was wholly inconsistent with the order and usage of 
parliamentary proceeding ; and he hoped, therefore, that the circum- 
stance of its having been suffered to pass now would not be pleaded 
as a precedent to justify a similar occurrence hereafter." * 

1555. The rule, however, does not preclude members from the 
use of written notes, for the purpose of enabhng them to state the 
elements or results of numerical calculations, or to aid their memory 
in calling to mind the facts, or in arranging the matters, which they 
propose to introduce in their speeches.^ 



CHAPTER SECOND. 

OF THE EULE THAT NO MEMBER IS TO SPEAK, UNLESS TO A 
QUESTION ALEEADY FENDING OR TO INTRODUCE A QUESTION. 

1556. It is essential to the efficient proceeding of a deliberative 
assembly, that its discussions should be conducted in such a man- 
ner, and directed to such questions, that, when concluded, the judg- 
ment, opinion, or will jf the assembly, in reference to the topics 

1 " In ancient times, but a few persons spoke Sir Wm. Coventry, March 2, 16T6. Grey, IV 

In the house, and their speeches were readj 172. 

penned. The powder and shot was ready ^ Grey, I. 158, 159. 

made up into cartridges; ready cut and dried, ^ Hans. (1), VII. 188, 207, 208. 

and a man had then time to think; but now * Hans. (1), VII. 188, 207, 208. 

we speak on a sudden, and therefore would ^ Hans. (1), VII. 188, 207, 208. See r1s« 

have some grains of allowance given." By Eeg. of Deb. IX. Part 2, 1492, 1521. 



Chap. IL] no speaking but to a question. 607 

discussed, may be ascertained with certainty, and expressed Avith 
authority. Hence, it is an established rule of parliamentary prac- 
tice, and one that should always be strictly observed,^ that no 
member is to address the house, unless it be to speak to a question 
already pending, or to introduce a question.^ 

1557. In the earlier periods of parliamentary history, it was the 
practice for members to address the house, in reference to any topic 
which they might think proper to introduce, or which might already 
have been introduced by other members, without any motion ; after 
some time spent in this manner, the speaker then framed a question 
from the turn of the debates, or from the suggestions of the several 
members who spoke, and stated it to the house ; and a question 
being thus regularly proposed, for the determination of the house, 
the members who afterwards addressed the house were confined to 
that question. This form of proceeding was done away with in 
the time of Mr. Speaker Onslow, and the present practice estab- 
lished, according to which no debate is allowed but upon a ques- 
tion proposed or to be proposed for the determination of the house. 
A trace of the ancient practice, however, stiU remains, in the rule 
which allows the member who makes a motion to introduce it by a 
speech, and the seconder of a motion to accompany it by a speech, 
before the motion is proposed as a question from the chair. But, in 
order to entitle the mover to proceed in this manner, he must either 
announce when he rises, or it must be in some other way made 
known to the house, that he intends to conclude with a motion.^ 

1558. When a member who has given previous notice of a mo- 
tion rises and addresses the house, it is sufficiently understood, or 
taken for granted, that he intends to conclude with a motion, and 
he is usually suffered to proceed without any formal announce- 
ment of his intention. But if a member who has given no such 
previous notice, or whose intention is not made known in some 
other way, rises to address the house when there is no question be- 
fore it, he may be interrupted by the speaker or any other member, 
on the ground that there is no question before the house. If, on 
being so interrupted, the member states that he intends to conclude 

1 May, 244. before the house to authorize debate." Reg 

« " The bishop of St. Amph said, that a con- of Deb. VII. 683. See also Cong. Globe, III. 

rersation had continued for a considerable 261. 

time, without any motion, and a conversation ^ " The speaker then interfered, as there 

in tliat house, without a motion, is a conver- was no question before the house." Hans. (1), 

jation about nothing." Hans. (1), II. 854. XII. 658. 

"The speaker said there must be a motion 



608 LEGISLATIVE ASSEMBLIES. [PaRT VI 

with a motion, he is entitled to proceed ; if he states that he does 
not so intend, he cannot be allowed to go on. 

1559. If a member, addressing the house when there is no ques- 
tion before- it, and being allowed to proceed without interruption, 
in the confidence on the part of the speaker and the members, that 
he will conclude with a motion, resumes his seat without making 
one ; or, if a member having given previous notice of a motion, 
and being allowed to address the house on the strength of such 
notice, concludes his speech by withdrawing the notice instead of 
making the motion ; or, if a member addressing the house, and on 
being interrupted, declaring his intention to conclude with a motion, 
finishes his speech without making one ; or, if a member being 
allowed to address the house, either upon the implied or express 
understanding that he will conclude with a motion, makes one 
which is trifling and unimportant in itself, or irrelevant to the 
speech for which it serves as the pretext ; in all these cases, if the 
failure of the member to redeem his pledge, proceeds from inadver- 
tence merely, or from a want of famiharity with the practice of 
parliament, the irregularity, though hable to be remarked upon, is 
usually overlooked ; but if it proceeds from a design wilfully to in- 
fringe upon the rules of debate, or to abuse the confidence of the 
house, such conduct might subject the offending party to animad- 
version and censure, and even to punishment. 

1560. The seconder of a motion, to entitle himself to proceed, 
has only to announce that he rises for that purpose ; though, in 
practice, this is hardly necessary, as, if a member, after a motion is 
made, rises and addresses the house in its favor, it must, of course, 
be seen at once, or taken for granted, without being formally an- 
nounced, that he intends to second it. 

1561. But though a member may thus introduce his motion, or 
second one already made, by a speech, before the motion is pro- 
posed to the house, and consequently before there is any question 
pending ; it is nevertheless competent for a member to make a mo- 
tion, or to second one, and to suffer it to be regularly proposed as a 
question before addressing the house ; and, in this case, the mover 
and seconder appear to stand upon the same footing with regard to 
speaking as the other members, and have no right to be heard first 
in the debate,^ unless they first obtain possession of the house. 

1562. The effect of this principle may be abrogated by a special 
rale implying that a motion shall not be debated until it is regularly 

1 Pari. Reg. XXII. 249, 250, 366. 



Chap. II.] no speaking but to a question. 609 

stated from the chair. Thus, there is a rule in the house of repre- 
sentatives in congress, first adopted in that body in 1789, which 
provides that " when a motion is made and seconded, it shall be 
stated by the speaker ; or being in writing, it shall be handed to 
the chair, and read aloud by the clerk before debated." This rule 
does not appear to have received an authoritative exposition until 
the 29th of May, 1812. On that occasion Mr. John Randolph 
having risen and stated to the house that he meant to submit a 
proposition for consideration, proceeded to discuss at large the rela- 
tions between this country and Great Britain, and between this 
country and France ; when Mr. John C. Calhoun, afterwards vice- 
president of the United States, interrupted him on a question of 
order, and submitted to the chair whether Mr. Randolph was at 
liberty thus to proceed without stating his proposition and its being 
seconded. The speaker, Mr. Henry Clay, thereupon decided " that 
Mr. Randolph was bound to state his proposition, which ought 
moreover to be seconded, announced from the chair, and reduced to 
writing if required, before he proceeded to debate it," This decis- 
ion being appealed from by Mr. Randolph was affirmed by the 
house, and Mr. Randolph, before proceeding, submitted his propo- 
sition, which was seconded and announced from the chair.^ Of 
course, where a motion is not allowed to be debated until it has 
been seconded and proposed from the chair, the seconder must take 
his chance for addressing the house with the other members. 

1563. When a motion is made and seconded, whether accom- 
panied by speeches on the part of the mover and seconder or not, it 
is then, in the regular course of proceeding, to be proposed by the 
speaker to the house as a question for their determination. If a 
motion is not seconded^ — unless it be one which does not requne 
seconding, — it falls of course, and is no further proceeded with ; 
when seconded, or if it does not require seconding, it is then open 
to objection and debate, as to its form, or its subject-matter, or the 
time of its introduction ; if unobjectionable in these respects, — or, 
being objected to, if sustained by the house, or rendered unobjec- 
tionable by the mover, — it is then to be proposed to the house ; 
and, \vhen so proposed, and not before, it is open for debate as a 
question to be determined by the vote or resolution of the house. 

1564. To the rule under consideration, namely, that no member 
is to speak, unless there is a question pending, or to be introduced 
by the member himself, there are certain exceptions, which wiU 

1 J, of H. Vm. 355, 356. See also J. of H. 17th Cong. 1st Sess. 297. 



610 LEGISLATIVE ASSEMBLIES. [PaRT VI. 

now be explained. The excepted cases, which are not so much of 
strict right, as of the indulgence and courtesy of the house, consist, 
first, of cases in which the rules are expressly suspended in favor of 
a particular member ; second, of questions to and answers by min- 
isters or persons connected with the administration of the govern- 
ment; third, of questions and answers of particular members con- 
cerning business which they have in charge ; and fom-th, of ques- 
tions to the speaker concerning the general course and order of the 
business of the house. In this country, persons officially connected 
wiih. the administration or executive part of government being 
carefully excluded by most of our constitutions, from being mem- 
bers of the legislative bodies, the practice of obtaining important 
information concerning public affairs by means of questions put 
directly to ministers, does not, of course, prevail here. 

1565. In our legislative assemblies, and particularly in the house 
of representatives of the United States, 'w^henever a member con- 
ceives his character or conduct likely to be misunderstood in con- 
sequence of publications in newspapers or otherwise, and thinks it 
of sufficient importance to be set right wdth his fellow-menibers, he 
asks permission of the house to make a personal explanation. If 
there is no objection, the member proceeds ; if any objection is 
made, the member then moves that the rules be suspended in order 
to enable him to make a personal explanation concerning a partic- 
ular matter. The rules being suspended accordingly, the member 
then proceeds with his explanation. In giving it, he is not Kable 
to be called to order for irrelevancy, provided he adheres to the sub- 
ject which he undertakes to explain.^ He is only bound to ab- 
stain from personality.^ Permission on the part of one member to 
make^ a personal explanation sometimes leads to a similar indul- 
gence on the part of another.^ 

1566. I. The house may dispense with the rule, on some 
special occasion, in favor of a particular member, and allow him to 
speak, when there is no question pending or to be introduced. 
This indulgence may take place either tacitly, by simply aUomng 
the member to proceed without interruption, or, expressly, by a 
vote beforehand granting him leave to speak, either at his own 
request or that of the speaker or some other member. In the for- 
mer case, the member speaking is liable to be interrupted at any 

1 J. of H. 27th Cong. 1st Sess. 680 ; Same, ^ j. of H. 30th Cong. 1st Sess. 345 ; Cong. 
29th Cong. 1st Sess. 721; Same, 30th Cong. Globe, XV. 732. 

IstSesP. 345; Cong. Globe, XV. 732. ^ J. of H. 29th Cong. 1st Sess. 985, 986? 

Same, 721. 



Chap. II.] no speaking but to a question. 611 

time by any other member objecting to his further proceeding ; in 
the latter, whether the leave is granted by a formal vote upon a 
motion made for the purpose, or by the tacit acquiescence of the 
house, on the suggestion of the speaker, or some other member, 
the member speaking is entitled to proceed without interruption. 

1567. The indulgence of speaking when there is no question 
before the house is usually confined to cases, in w^hich the member 
has some complaint to make, or some explanation to give, relating 
to himself ; and, on these occasions, the house is usually indulgent, 
though the member concerned does not intend to bring Ihe subject 
before the house in any other manner. When a member is allowed 
to speak for any of these purposes, by the indulgence of the house, 
he ought not to go into general arguments or to indulge in any 
remarks which may lead to debate or provoke reply, but to confine 
himself to giving the explanation which he has undertaken to 
give of his conduct or words, or to justifying himself against the 
imputations of which he complains ; and, so long as he confines 
himself within these limits, he is entitled, if he has the express 
leave of the house to speak, or is generally allowed, if the indul- 
gence is merely the acquiescence of the house, to proceed without 
interruption. 

1568. II. A second class of exceptions has arisen from the prac- 
tice which has long prevailed, and is now established in both houses, 
of putting questions to ministers or persons in office, concerning 
any measure pending in parliament, or other public event,^ or the 
intentions or policy of the government,''^ and of receiving the an- 
swers or explanations of the persons so interrogated.-^ This devia- 
tion from the strictness of the general rule of order has been at all 
times allowed, as a means of obtaining for the house material infor- 
mation which might throw light upon the business before it, and 
serve to guide its judgment in its future proceedings. 

1569. 1. The purpose of inquiries of this description being to 
obtain information for the use of the house, it is the common prac- 
tice for members to inform the gentleman of whom they are about 
to ask a question, what is the subject of it, in order that he may be 
prepared to give the required information.'* 

1570. 2. Questions of the kind now under consideration can 
only be put to members, who are either ministers, or who hold some 
official position in the government, and not to members who are 

1 Mav, 245. « May, 245; Pari. Reg. (2), X. 49, 102, 103 

» Haus. (3), LXm. 491. * Hans. (3), XXXVHI. 1108, 



612 



LEGISLATIVE ASSEMBLIES. 



[Paet VI. 



merely invested vdth some civil, military, or naval office, nncon- 
nected with administrative functions ; thus, where a member was 
requested to state his opinion, as a naval officer, of a certain experi- 
ment recently tried, the speaker, Mr. Shaw Le Fevre, interposed, 
and reminded the member by whom the question vt^as put, that the 
member to whom it was directed, " not holding any official position 
in the government, was not called upon to answer any question of 
the nature of that put to him, unless it pleased him to do so." ^ 

1571. 3. The questions, which may be put to ministers, and which, 
by the practice of the house, it is their duty to answer, ought regu- 
larly to be such, the answers to which will afford information to the 
house, relating to some pending measure, or to some public event 
connected with the administration, or to enable the house to form 
an opinion of the policy of the government ; ^ but, to put inquiries 
to ministers, for the mere purpose of being able to contradict an 
idle rumor ; ^ or as to the mere news of the day, equally accessible 
to everybody, as, for example, "whether the French troops had 
taken military possession of the citadel or town of Mons ; " "^ or as 
to the supposed official character of an article in a newspaper ; '^ or 
as to the truth of a rumor appearing in a newspaper, of a minis- 
terial measure in contemplation, as, for example, " that the title of 
king consort was about to be conferred on Prince iVlbert ; " ^ is 
wholly irregular ; and, in aU such cases, ministers are at hberty to 
answer or not, as they, in then* discretion, may think most expe- 
dient and proper. 

1572. 4. According to the stiict rule of order, no individual 
member of the house has a right to put a question to any other 
member ; he may move the house, that such a question be put by 
the speaker ; and, if the house gives its permission, the question 
may be put accordingly. But, in practice, it is found most conven- 
ient to dispense with this formality ; and questions are ordinarily 
put by one member directly to another ; bemg supposed, however, 
to be put by the house through the chau', at the suggestion, or on 
the motion, of such member.' 

1573. In putting his question, it is the duty of a member to 
express himself in a respectful manner,^ and to confine himself to 
stating it as a dry, simple query ,^ with merely such an explanation 



1 Hans. (3), LXXVL 1177. 

2 Hans. (3), V. 1212, 1213. 

3 Hans. (3), LXXVH. 529, 530. 
* Hans. (3), V. 1212, 1213. 

5 Hans. (1), XL. 591, 592, 593. 



« Hans. (3), LXXVIL 529, 530. 
' Hans. (1), XXXV. 155, 156, 15-7. 
8 Hans. (1), XV. 602, 603. 
» Hans. C3), II. 554. 



Chap. IL] no speaking but to a question. 613 

of the facts and circumstances, out of which it arises, as may be 
necessary to render it intelligible to the house ; ^ but, he is not at 
liberty to comment on the subject of it;^ nor, in stating the facta 
and circumstances, by way of explanation, to go into them at 
length ; 3 or to present them in such a manner, as to raise an argu- 
ment and lead to debate.* 

1574. When the answer to a question has been given, it is 
irregular for the member asking the question, or for any other, to 
comment upon the answer, or upon the subject thereby introduced 
to the house ; the necessary consequence of which would be to 
engage the house in a debate, when there was no question before 
it.'' If it is desired to carry the subject further, the practice is, to 
give notice of a motion relating to it, for a future day, or, to make 
such a motion immediately.^ 

1575. 5. When a question, which is unobjectionable, has been 
put to a minister or other official person, in a proper form and man- 
ner, the member so interrogated is bound to answer it, provided the 
information demanded is within his knowledge, and can be com- 
municated consistently with the public interest. In giving his 
answer, the member should confine himself to the points stated in 
the question, with such an explanation only, as will render the 
answer intelligible," and avoiding all comment or explanation which 
may lead to debate or provoke reply. The answer, when given, is 
inserted on the journal, as a matter of course, and without any 
motion or vote.^ 

1576. III. A third class of exceptions consists of questions put 
to particular members, and of the ansM'^ers given thereto, relating to 
measures, of which, according to the course of parliamentary pro- 
ceedings, they are considered to have especial charge, as, for exam- 
ple, members who have introduced bills, or who have given notices 
of motion.^ Questions of this description are supposed to be put 
in the same manner as questions to ministers ; are founded in a 
similar reason of pubUc convenience ; and are governed by the same 
rules, as to the form in which they are to be put, and the manner 
in which they may be answered. There is no similar obligation, 

1 Hans. (3), LXIX. 574. 7 May, 245. 

2 Hans. (1), IX. 191, 193. 8 Hans. (1), XV. 602, 603. 

3 Hans. (3), 11. 554. 9 May, 245; Hans. (3), XXVni. 31. See 

♦ Hans. (3), VH. 263, 264. also Cong. Globe, VIII. 172; Same, X. 248; 
6 Hans. (I^, XXXIX. 69. Same, XI. 566, Same, XXIII. 215. 

• Hans. (1), XVI. 739. 

52 



614 LEGISLATIVE ASSEMBLIES. [PaRT VI. 

however, on the part of the member interrogated, to answer ; ^ nor 
is the answer, when given, to be entered on the journal. 

1577. Questions to members should relate only to the course of 
proceeding, which they have adopted, or propose to adopt, in refer- 
ence to the measures which they have in charge ; and the ans^vers 
should in hke manner be confined to the course of proceeding, with- 
out being allowed to diverge into the general subject ; thus, "where 
a member, who had given notice of a motion for a future day, was 
inquired of by another member, wdi ether it would not be better to 
postpone his motion, and, in his answer, was proceeding at some 
length on the subject itself, he was interrupted to order, and the 
speaker (Mr. Manners Sutton) said, that the member, " having been 
asked to postpone the motion, he certainly was at liberty to state 
whether he would acquiesce in or refuse that request, and his 
reasons for so doing ; but, in going beyond that, and in entering 
on an argument in reference to the general subject, he certainly 
rendered himself liable to the comment of the honorable mem- 
ber." 2 

1578. The subjects above suggested are the only ones in refer- 
ence to which questions are allowed to be put by one member to 
another and answered. Attempts have been made, from time to 
time, to interrogate members with reference to other matters, but 
without success. Thus, where a member, having first read from a 
newspaper, the proceedings of a certain society, at a public dinner, 
at which certain members were present, then proceeded to inquire, 
whether those members avowed one of the resolutions, passed at 
the meeting, he was interrupted to order, and, the speaker said, that 
" it was certainly quite new in the proceedings of parliament, for 
members to be questioned in that house, about what passed at 
tavern dinners."^ So, where a member, having first caUed the 
attention of another member to certain observations, which the 
latter had made respecting him in the course of a previous debate, 
then called upon that member either to retract the charge, or to 
state the grounds on which he had made it, and the member so 
interrogated was proceeding to reply, the speaker (Mr. Manners 
Sutton) interfered, and " expressed his doubts, whether, according 
to the orders or forms of the house, such a question should be put 
or answered."* In another case, where a member, alluding to a 

1 Hans. (3), LXXVL 1177. » Hans. (1), XX. 746. 

« Hans. (3), XIU. 305. * Hans. (2), XII. 1314, 1815. 



Chap. IL] no speaking but to a question. 615 

statement made on a former occasion, by another member, in refer- 
ence to a petition presented by the former, " that it had been drawn 
up by a cowardly and malignant demagogue," proceeded to ask 
that member, whether he had ascertained the real authors of that 
petition, and, if he had, whether he intended those terms to apply to 
those individuals, — the speaker said, that " he thought the question 
which was put by the honorable member most irregular." ^ It is 
equally irregular, for a member to take up a newspaper, and to call 
upon another member, whose speech is there reported, either to deny 
or adopt that publication .^ 

1579. IV. Questions relating to the business and proceedings of 
the house, addressed by members to the speaker, constitute the last 
class of exceptions to the rule now under consideration. Questions 
of this nature, to be admissible consistently with order, should relate 
to matters in reference to which it is the duty of the speaker to 
inform the house.^ Thus, the speaker may be inquh-ed of, as to the 
proper mode of carrying up an address ; ^ as to whether an instruc- 
tion to a committee, which a member had given notice of his inten- 
tion to move, could be moved consistently with the forms of the 
house ;'^ as to the course of proceeding, which a member proposes 
to pursue in a particular case, and whether it would or would not 
be regular ; ^ as to the extent and meaning of a rule of order laid 
down by the speaker on a former occasion ; ' as to whether a system 
of proceeding, in common use, was strictly in order.^ 

1580. In all cases of this kind, it is competent for other members 
also to express their opinions. If this should lead to debate, upon 
a mere hypothetical point of order, the speaker would feel it to be 
his duly to put a stop to it, on the ground of there being no question 
before the house, when the conversation had gone as far as was 
necessary for the purpose of explanation.^ 

1581. It seems to be the duty of the speaker, to take it for 
granted, that whoever addresses the house wiU do it in order ; and 
he may well presume therefore that a member speaking, when there 
is no question before the house, will conclude with a motion,^*^ or 
otherwise bring himself within order. 

1 Hiuis. (3), XIII. 424. 5 Hans. (.3), LXXIV. 107. 

'>■ Hans. (3), XXXVII. 1318. See also Cong. « Hans. (3), LXI. 661, 662. 

■31obe, IV. 169. ' Hans. (3), LXI. 661, 662. 

* Hans. (1), XXHI. 283; Same, (3), LXXIV. s Hans. (3), LXIH. 491. 
216; Pari. Reg. XXVL 26. See also Cong. » Hans. (3), LXXIV. 107. 
aiobe, XXI. 68. 10 Parl. Reg. LXU. 200. 

* Hans. (1), XXUL 283. 



616 LEGISLATIVE ASSEMBLIES. [PaRT VI. 



CHAPTER THIRD. 

OF THE RULE THAT NO MEIVIEER IS TO SPEAK MORE THAN ONCE 
TO THE SAME QUESTION. 

1582. It is considered essential to the despatch of business in a 
legislative assembly, and is accordingly established as a rule, that 
no member shall speak more than once to the same question.^ 
This rule seems to be founded in the principle, that when each of 
the members has given his opinion, the question is in fact decided ; 
and it is contrary to order to discuss a question vv^hich is akeady 
decided. To this rule, there are certain exceptions, some of which 
are of right, and others of the indulgence of the house. Before 
taking notice of the exceptions, it will be necessary to explain the 
rule,/r5^, by considering what is understood by a speaking, and, 
secondly, what is understood by the same question. 



Section I. What is understood by a Speaking. 

1583. A question being proposed from the chair, or other^dse 
arising in some less formal manner, every member is at liberty to 
express his opinion upon it by rising and adckessing the house. 
When a member rises for that purpose, and obtains possession of 
thejiouse, he may address it at any length and in whatever manner 
he pleases, provided he confines himself within the rules of order ; 
and, consequently, whatever he says with reference to the question, 
— whether consisting of his own thoughts, or of something extra- 
neous which he introduces as a part of his speech, — whether within 
the rules of order or not, — or whether much or little, — relevant or 
otherwise, — constitutes a speaking. If, having so risen, and being 
so entitled to speak, he says but little, or is irregular and disorderly 
in what he says, and then resumes or is compelled to take his seat, 
it is fair to presume, either that he has nothing more to say, or 
nothing that is proper for the house to hear; and he is accordingly 

1 Hatsell, n. 105, 106. It is common in the and to provide, also, that certain questions 

legislative assemblies of this country to regu- shall be taken without debate. Where there 

late by a special rule the times of speaking, is no special rule on the subject, the parliar 

both in general, and as to particular questions, mentary rule above stated prevails. 



Chap. III.] no member to speak but once. 617 

deemed to have availed himself of his right to address the house on 
the question before it. 

1584. The following are examples of the application of the 
rule, and will serve to illustrate what is meant by a speaking : — 
Where a member, in asking a question, (which he had a right or 
was allowed by the house to ask,) followed up his question with an 
observation, he was precluded from speaking again, on the ground 
that he had abeady spoken ; ^ where a member, who had spoken to 
the question, rose a second time, and was proceeding to read a pas- 
sage from a petition which was the subject of discussion, he was 
stopped by the speaker (Mr. Manners Sutton), who informed him that 
it was not competent for him to do so, he having already addi*essed 
the house, and the passage was thereupon read by another member, 
who had not before spoken ; ^ where a member, addressing the house 
and being intciTupted by a violent coughing and cries of question, 
abruptly terminated his speech with a motion to adjourn, which he 
afterwards proposed to VN^ithdraw, the speaker (Mr. Manners Sut- 
ton) informed him, that he might do so, with the permission of the 
house, but he could not again speak.^ 

1585. It seems that, according to the strict rule, where a mem- 
ber rises and makes or seconds a motion, without addressing the 
house at the same time, such moving or seconding is equivalent to 
a speaking, and precludes the member from afterwards speaking in 
the debate. The rule was thus stated in express terms by Mr. 
Speaker Manners Sutton, with reference to a member's seconding 
a motion,"* and it is difficult to distinguish, in this respect, between 
the mover and the seconder of a motion ; but the speaker added, 
that though the strict rule was unquestionably so " it was some- 
times the custom of the house to allow, as a matter of courtesy, 
a gentleman who had seconded a motion to speak at a future 
period."-^ Such seems now to be the general practice both in rela- 
tion to the mover and seconder of a motion.^ In this country, it is 
held, that a member, who has spoken in the debate, and is not at 
liberty to speak again, may, nevertheless, rise for the purpose, and 
make any motion in relation to the matter in question, which is in 
order at the time." 

1 Hans. (3), XXXV. 641, 642, of the duke of York, without speaking; then 

2 Hans. (2), XVI. 1217. three other members spoke; then Sir Francis 
' Hans. (3), H 538. Burdett spoke without objection. Hans. (1), 
« Hans. (2), IV. 1013. Xll. 187, 192. 

* Sir Francis Burdett, seconded Mr. War- ^ May, 247. 
lie's motion for an inquiry into the conduct ' J. of H. 24th Cong. 1st Sess. 83. 

52* 



618 LEGISLATIVE ASSEMBLIES. PaRT VI. 



Section II. What is understood by the same Question. 

1586. A motion, made, seconded, and proposed from the chair, 
becomes a question for the decision of the house ; a question may 
also arise in a less formal manner, as, for example, when a point of 
order occurs, without any motion being made, or question proposed ; 
but, in whatever manner a question may arise, when it is regularly 
before the house, every member has a right to express his opinion 
upon it, until it is disposed of, either permanently or for the time 
being. 

1587. It frequently happens, while a question is pending and 
under discussion, that some other question, — subsidiary, incidental, 
or privileged, — arises or is formally moved ; in which case, the 
question, first moved, called sometimes the main, that is, primary, 
or principal question, is superseded or suspended for the time being, 
by the new question. "When this proceeding takes place, — as soon 
as the new question arises or is formally proposed, — that is the 
question to which members must speak and every member is at 
liberty to speak to it, notwithstanding he may have spoken to the 
former. 

1588. If the new question is of such a nature, that the decision 
of it either way does not involve a decision of the main question; 
— when the former is decided, the latter revives and the debate 
upon it proceeds in the same manner as if it had never been inter- 
rupted : those who spoke to it before the intervention of the new 
question, are not at hberty to speak again ; and those who have 
only spoken to the new question are then at liberty to speak to the 
main question, in the same manner as if the former had never been 
moved. An example of this occurs, where an amendment is moved; 
which, of course, supersedes the original question, until it is decided. 
While the amendment is pending, the main question cannot be 
spoken to; when it is decided, — whether agreed to or rejected, — 
the original question revives and may be spoken to as before. 

1589. K the new question is one, which, if decided one way, 
carries with it a decision of the principal question, but, if decided 
the other way, allows the main question to revive ; as soon as the 
new question is moved, it may be spoken to as well by those who 
have aheady spoken on the main question as by those who have 
not ; but, when decided, if the decision does not also involve that 
of the main question, the latter may then be spoken to, by all who 



Chap. III.] no member to speak but once. 619 

have previously spoken only on the secondary question. An exam- 
ple of this occurs, when during the pendency of any question, an 
adjournment of the debate is moved. Whilst this latter motion is 
pending, every member may speak to it, though he may have 
already spoken to the original question. If decided in the affirma- 
tive, the original question is disposed of, by being postponed, until 
the day to which it is adjourned ; if in the negative, the original 
question revives, and may be spoken to as already stated. The 
previous question is an exception to this rule ; because, if decided 
in the negative, the main question is suppressed, and if decided in 
the affirmative, it must be immediately taken, without any further 
debate being allowed. 

1590. Where the debate on a question is adjourned to a future 
day, and then resumed, the resumed debate is considered merely as 
a continuation of the original debate ; those who have previously 
spoken on the question, though on a former day, not being at liberty 
to speak again ; while those who have not previously spoken may 
speak, however many times the debate may have been adjourned 
and resumed.^ It is immaterial in what manner the continuation 
of the debate takes place, as by lapse of time, adjournment of the 
house, postponement of the subject, as well as by adjournment of 
the debate. 

1591. The word question^ in the rule, that no member shall speak 
more than once to the same question, is to be taken in its strict 
technical sense of a question submitted to the decision of the house, 
and not as synonymous Math the subject of that question ; for, when 
a question is submitted to the house, every member has a right to 
speak to that question, notwithstanding he may have already 
spoken on the subject of it, on some former occasion, and notwith- 
standing the house may have already expressed an opinion on the 
same subject. Hence, it is a principle of parliamentary practice, 
that, when, by the forms of proceeding, the same subject is sub- 
mitted to the consideration of the house more than once, the ques- 
tion presented on each occasion is a new and different one, and 
open to debate, precisely in the same manner as if the subject of it 
had never been discussed in any other form. Thus, each stage of 
a bill gives occasion to a new and different question, though the 
subject remains the same; as, for example, a motion for leave to 
bring in a biU presents a different question from a motion that the 
bill be read a ffrst or second time ; and a motion for commitment 

1 Pari. Reg. XLIV. 487 ; J. of H. 24th Cong. 1st Sess. 83. 



620 LEGISLATIVE ASSEMBLIES. [PaRT VI. 

of a bill gives rise to a different question from a motion that the 
bill pass. So, where resolutions for an address are discussed and 
agreed to, and a committee appointed to draw it up, when the 
address is reported, and a motion made for agreeing to it, the ques- 
tion presented is a diiferent one from agreeing to the resolutions, 
although the subject is the same, and the language, mutatis mutafidis, 
the same. 

1592. A member, who has already spoken to the question, has 
the same right to make a new motion, as if he had not spoken,^ 
and to introduce his motion by a speech, without being taken down 
to order on the ground of his having before spoken.^ But, in this 
case, it is irregular and disorderly for a member to use Ms right as 
a mere pretence for making a second speech to the same question ; 
as, where a member, having abeady spoken, and being allowed to 
proceed in a second speech, on his saying that he should conclude 
with a motion, concluded with moving that certain parts of the 
journal be read, the speaker (Sir John Mitford) said, that " it was 
not usual to put the question, nor to make motions for reading 
extracts from the journals, unless something was to be done upon 
it ; he feared, therefore, that he had not been regular in allowing the 
honorable gentleman to make a second speech." ^ 

1593. The foregoing rule is subject to an exception in regard to 
motions for amendment ; which, if moved by a member, who has 
already spoken, cannot be introduced by a speech.'^ The propriety 
of this exception being called in question by Mr. Pitt, and the 
opinion of the speaker, Su* John Mitford, called for, he said, that " it 
certainly was not strictly customary to allow a gentleman to go 
over the whole ground of his former speech, because he meant to 
conclude with an amendment, — that much trouble would be saved 
to the house by preventing persons who had once spoken in debate,^ 
and explained, proposing amendments to motions, that no possible 
inconvenience would arise, as this did not preclude any other gen- 
tleman from proposing the intended amendment, — and that, in 
his mind, this would be the most regular and orderly method." ^ 
This opinion was acquiesced in by the house. At a subsequent 
period, Mr. Speaker Abbott gave it as his opinion, in general terms. 



1 J. of H. 24th Cong. 1st Sess, 83. ^ Mr. Pitt's question referred to the case of 

* Hans. (1), I. 819. a member, who had spoken and exjjlained, and 
s Pari. Reg. LX. 365, 366. See further, on the same qualification is here inserted by the 

this subject, Same, LIX. 337. speaker. It is clearly immaterial. 

* Pari. Reg. LX. 86, 87; Hans. (1), LV. 546, « Pari. Reg. LX. 86, 87. 
647. 



Chap. III.] no member to speak but once. 621 

that by the rules of the house, a member could not make a second 
speech to move an amendment.^ 

1594. The rule, which precludes a member from speaking more 
than once to the same question, is subject to certain exceptions, 
which are of right, namely : 1, to explain ; 2, to make a statement 
of fact ; and, 3, when the house is in committee of the whole ; and, 
also, to certain others, which are due to the indulgence of the 
house, namely : 4, in certain cases to reply at the end of a debate ; 
and, 5, when the rule is dispensed with on some particular occa- 
sion. 

1595. I. When a member, who has already spoken, conceives 
himself to have been misunderstood in some material point of his 
speech, as, for example, when his language is misquoted,^ he is 
allowed to speak again, for the purpose of explaining himself, in 
reference to the part so misunderstood.^ In the lords, it is an 
ancient order, " that none may speak again to explain himself, unless 
his former speech be mistaken, and he hath leave given to explain 
himself ; " * in the commons, the privilege of explanation is allowed, 
without actual leave from the house.^ 

1598. The right of explanation is, for obvious reasons, limited to 
a statement of the words actually used, when a member's language 
is misquoted or misconceived, or to a statement of the meaning 
of his words, when his meaning is misunderstood. It is not in 
order, therefore, for a member, under pretence of explanation, to 
state what he was going to say but did not ; ^ or to give the motives 
which operated in his mind to induce him to form the opinion 
which he expressed ; •■ or to explain the language of another mem- 
ber ; ^ or to explain his own conduct ; ^ or to explain the character 
and conduct of another person ; ^'^ or to go into new reasoning or 
argument; ^^ or to reply to the speech of another member.^^ 

1597. The proper time for explanation is when the member 



1 Hans. (1), IV. 546, 547. Perhaps the 2 Cav. Deb. I. 465. 
exception would be confined to the case of a ^ Hatsell, H. 105; Hans. (3), XII. 923. 
meml)er's undertaking to make a second * May, 246. 
speech on the same question, under the pre- ^ May, 247. 
tence of moving an amendment; and that a ^ Hans. (1), I. 814, 815. 
member, who had already spoken, might be ' Hans. (1), XXIX. 409. 
allowed to introduce an amendment by a 8 Hans. (1), XXVI. 515; Same, (1), XLL 

speech, provided he kept strictly to the amend- 167. 

ment, without entering again upon the main » Hans. (3), LXVI. 885. 

question. Perhaps, however, the meaning 10 Hans. (3), XXXVIII. 13. 

may possibly be, that a member who has " Pari. Reg. XXV. 22; Hans. (1), I. 814, 81& 

spoken to a question is not allowed to move ^ Hans. (1), LXVI. 885. 
an amendment. 



622 LEGISLATIVE ASSEMBLIES. [PaRT VL 

speaking has concluded his remarks ; until which time, the member 
misrepresented or misunderstood has no right to explain.^ It is, 
however, the constant course, in order to prevent the founding of 
an argument upon a misrepresentation, which is perhaps involun- 
tary, to allow a slight interruption of the member speaking, for the 
purpose of correcting the error.^ But this can only take place "Vidth 
the leave of the member speaking, who, being in possession of the 
house cannot be interrupted but by a call to order, or with his own 
consent.^ If, therefore, for convenience, or by coui'tesy, an oppor- 
tunity is allowed a member to correct any misunderstanding of a 
member addressing the house, the indulgence is to be thankfully 
received; but, though it is an ordinary courtesy of the house to 
allow a misrepresentation to be instantly corrected, as often saving 
time, and further misrepresentation, it cannot be demanded as a 
right by any member, under any circumstances.* 

1598. When a member rises to explain, and obtains possession 
of the house for that purpose, either temporarily interrupting the 
member speaking, or at the close of his speech, it is his duty to 
make his explanation in the manner already suggested, and then 
resume his seat. If, in explaining, or after he has made his expla- 
nation, or without undertaking to explain at all, he proceeds to 
advert to matters not necessary or proper for the purpose of expla- 
nation, or endeavors by new arguments and statements to strengthen 
what he had before said, or makes an attack upon the person or 
speech of another member, he may be called to order by the house, 
or by some- member, or by the speaker, and wiU be directed by the 
latter to confine himself to simple explanation.^ 

1599. Whatever a member says in explanation, — whether relat- 
ing to the words or the meaning of his speech, — is to be taken as 
true, and not afterwards called in question. The words, which he 
states himself to have used, are to be considered as the words 
actually used ; and the sense in which he says they were uttered as 
the sense in which they are to be taken in the debate.*" 

1600. When a member speaking yields to an interruption for the 
purpose of explanation, he does not thereby conclude his speech, so 
as not to be able to resume it, on the conclusion of the explanation ; 



1 Hans. XXVIL 121, 122; Cav. Deb. L 3 Hans. (1), XLL 167; Same, (3), XXX VL 
465; Hans. (1), IV. 159; Same, XLL 164; 551. 

Same, (3), VHL 113, 114; Same, XXXVL * Hans. (1), XLL 167. 
551; Same, XXX VH. 1170, 1171. » May, 247. 

2 Hans. (1), XLL 167; Same, (3), VHL 113, « Hans. (2), XXL 393. 
114. 



Chap. III.] speaking allowed until question put. 623 

but when the member explaining has finished his explajiation, the 
member speaking becomes again entitled to the floor, unless he has 
relinquished absolutely, and resumes his speech and proceeds 
precisely as if he had been interrupted to order and allowed to 
proceed. 

1601. There seems to be no reason, why a member, who is 
allowed by the indulgence of the member speaking to inteiTupt him 
for the purpose of explanation, should not be allowed to explain 
himself as often as he is misunderstood. But if he waits, according 
to the rule of order, until the member speaking has concluded his 
speech, he would not probably be allowed to speak more than once 
in explanation. 

1602. II. A second exception to the rule as to speaking but 
once to the same question is admitted, when a member, who has 
already spoken, desires to inform the house of a fact.^ A petition 
being presented, praying the expulsion of a member, a motion "was 
made to reject the petition, and the debate thereon was adjourned ; 
on resuming the debate, a member who had previously spoken rose 
to address the house a second time ; his right to speak being called 
in question, he said " he thought it was incumbent on him to state 
to the house, before it came to any decision on the subject, that he 
was in possession of certain facts from an official source, which 
would entirely set aside the allegations of those who had signed 
the petition;" the speaker (Mr. Manners Sutton) thereupon 
declared, " that if the member, who wished to address the house, 
did so with the intention of communicating to the house informa- 
tion derived from official documents, which would controvert any 
previous statement made to the house, he had an undoubted right 
to make such a statement, before the house could be called upon to 
decide the question before it." ^ 

1603. When a member avails himself of his right to address the 
house a second time, for the purpose of stating a fact, he should, of 
course, confine himself to the statement which he is entitled to give, 
vvnth such observations only, by way of explanation, as may be 
necessary to render it intelligible. 

1604. III. A third exception, in which the right of a member to 
address the house more than once on the same question is admit- 
ted, occm-s when the house is in a committee of the whole. Thia 

» Hatsell, n. 105; Grey, III. 357, 416; Hans. « Hans. (3), XVIIL 510, 555. 
(3), XVin. 510, 555. See also Ann. of Cong. 
I. 1261, 1268; Cong. Globe, XL 462. 



624 LEGISLATIVE ASSEMBLIES. [PaRT VL 

will be more fully explained in connection with the proceedings of 
committees. 

1605. IV. It is the ordinary courtesy of the house, though not 
of strict right, to allow the member, who introduces a motion, to 
speak a second time, by way of reply.^ This privilege is conceded 
only to the mover of a distinct and original proposition, on its first 
introduction to the house. It does not belong to a member who 
moves the reading of or proceeding with an order of the day, as 
that a bill be read a second time ; ^ nor to the mover of an instruc- 
tion ^ to a committee of the whole house ;4 nor to the mover of an 
amendment,'^ although the original motion is a merely formal one, 
as that the speaker do now leave the chair, and the amendment is 
the real subject of the debate.^ 

1606. The privilege of reply can only be exercised once, in 
answer to aU the objections brought forward against the motion. 
The member entitled to it should therefore wait, before speaking, 
until all the members opposed to his motion have spoken ; if he 
does so, it is not customary (perhaps not in order) for other mem- 
bers to renew the debate ; '' but if he speaks in reply, in the course 
of the debate, other members are not thereby precluded from speak- 
ing ; ^ and thus the member may in fact deprive himself to some 
extent of his privilege of reply, by exercising it prematurely. 

1607. The term reply denotes the extent of the privilege ; it is 
not that of speaking at large to the question ; but is limited to 
points immediately applicable to the motion.^ If a member, there- 
fore, in his reply, goes beyond the proper limits, and introduces new 
matter, other members are at liberty to speak to the question.^*^ So, 
where the mover is allowed by the house, to speak a second time, 
in the course of the debate, when he is not in fact entitled by the 
ordinary courtesy of the house to reply, — as where the motion is 
for an amendment, or for an instruction to a committee of the 
whole, — the question is still open for debate.^i 

1 Pari. Reg. XIL 127; Same, XXXII. 93, « Hans.(3), XXXVIILIS; Same, (3), XLIV. 
94; Same, XLIX. 126; Hans. (1), XVL 744. 98, 383, 443. 

2 Hans. (1), m. 641. ' Hans. (2), IL 344; Same, (3), XI. 284. 

3 " Under these circumstances, it is ntri un- ^ Pari. Reg. XXXIL 93, 94. 
common for a member to move an order of the ^ Pari. Reg. XXXH. 93, 94. 
day, or second a motion, without remark, and ^"^ Hans. (3), XI. 284. 

to reserve his speech for a later period in the ^^ Hans. (2), 11. 344. The extent to which 

debate." May, 247. replies are allowed, as a matter of right, must 

* Hans. (2), 11. 344. depend, of course, upon the rules of each 

6 Hans. (1), XXL 1289, 1290; Same, (3), assembly. Those of the house of representa- 

VTII. 724, 725. tives in congress, are given in a preceding 

paragraph, ^ 1541. 



Chap. III.] speaking allowed until question put. 625 

1608. V. In addition to the excepted cases, already enumerated, 
in which a member is entitled of right, or is allowed by the ordinary 
rules of courtesy, to speak a second time, the house may, at its 
pleasure, make an exception on any special occasion, by dispensing 
with its rule, in favor of some particular member, or of some par- 
ticular proceeding.^ This indulgence usually takes place, without 
any formal motion or vote, but by the tacit acquiescence of the 
house ; the member to whom the indulgence is accorded being 
allowed, on the suggestion of the speaker,^ or of some member,^ or 
at his own request,^ to proceed without interruption. 

1609. The following are examples of the kind of indulgence 
alluded to : — On resuming an adjourned debate, " which had been 
principally adjourned in order to afford time for a further consid- 
eration," the house, on the suggestion of the speaker, dispensed 
with the rule in favor of those members who had already spoken 
in the debate on a previous day ; ^ on resuming an adjourned de- 
bate, the member who introduced the question, having previously 
spoken, was allowed, at his own request, to speak again ; ^ under 
the peculiar circumstances of the case, members were allowed to 
reply when, by the ordinary rules of courtesy, they Were not allowed 
to do so ; ^ so, it is usual, where a personal appeal is made to a 
member who has already spoken, to allow him to answer it ; ^ or, 
where a personal charge is brought against a member,^ or his con- 
duct is arraigned ^^ in debate, to allow him to speak a second time 
to justify or defend himself; but, in all these cases of special leave, 
the member indulged is bound to confine himself strictly within the 
terms of the permission given him.^^ 

1 Hatsell, II. 106; Same, 233, note; Comra. 8 Parf. Reg. XXX. 78; Same, XXXV. 550; 
Deb. XII. 305; Pari. Reg. XXVIL 322. Hans. (3), XXVIH. 663. 

2 Pari. Reg. XXVII. 322; Hans. (3), LXVL ^ Hans. (1), XIX. 723, 724, 725; Same, (3), 
885. VIII. 724, 725. 

3 Comm. Deb. XIL 305; Cav. Deb. L 427; 8 Hans. (1), XXXH. 1221, 
Pari. Reg. XXXV. 550. » Hans. (3), XXXH. 820. 

* Pari. Reg. XXXV. 550 ; Hans. (3), XXVIII. i" Hans. (3), XL VI. 885. 



»Parl. Reg. XLIV. 487; Same, XXVIL 
822. 

53 



" Hans. (3), XLVL 885. 



626 LEGISLATIYE ASSEMBLIES. [PaET VL 



CHAPTER FOURTH. 

OF THE EULE THAT A QUESTION IS OPEN EOR DEBATE UNTIL IT 
IS EEELY PUT ON BOTH SIDES. 

1610. When members no longer rise to address the house on 
the question before it, and the debate appears to be concluded, it is 
then the business of the speaker to put the question, in order to 
obtain the decision of the house upon it. If, in consequence of 
irresolution, or the behef that others are to speak, or for any other 
cause, members who desire to speak suffer the question to be put 
before they rise in their places, they are nevertheless entitled to be 
heard and to move amendments, etc. ; ^ it being a fundamental 
rule, " that the house cannot be concluded in any thing, so long as 
any gentleman stands up to speak, that respect is had to the 
gentleman that stands up, to suppose that possibly he may say 
something to give new light into the matter coming to the question 
so as to change the whole thing, it is not knoA^m what a gentleman 
wall say till he speaks." - The right to speak is so sacred, and the 
exercise of it at the pleasiure of every member so important to the 
freedom of debate, that the speaker may even be interrupted while 
in the act of puttmg the question,^ on the same principle that a 
member, whilst speaking, may be interrupted by another member 
rising to order, or for the pm-pose of calling the attention of the 
house to a matter in which its pri^-ileges are immediately involved. 
The limit, beyond which it is no longer allowed to speak to a ques- 
tion, is when the question has been fully put, which implies that 
the voices have also been given, — that is, vi'hen, in point of fact, 
the question has been decided, — and nothing remains but for the 
speaker to ascertain and declare the vote.^ 

1611. "When a question is put in the form in which it is to be 
taken by consent, — that is, where the speaker merely inquires 
whether it is the pleasure of the house that such a thing should be 
done, and, no one dissentmg, declares it to be so ordered, — the 
question is open for debate until the speaker's declaration. 

1612. When a question is put in the usual form, in which it is 

1 Mav, 241; Scobel, 23, 24; PiomiUy, 274. ^ Scobell, 23,24; Eomilly, 274. 

« By Sir William Coveutry. Grey, V. 143, * May, 241, 
U4. 



Chap. IV.] speaking allowed until question put. 627 

to be taken by the voices, — that is, where the speaker first calls for 
the voices of those in the afhrmative, and then for the voices of 
those in the negative, and then declares for the one side or the 
other, according to his judgment of their relative numbers, — the 
question is open for debate until the voices in the negative have 
been given.^ 

1613. When a question is taken by a division of the house, — 
that is, where the members on each side go by themselves and are 
counted by tellers appointed for the purpose, — the question is 
open for debate until the numbers which are the result of the divis- 
ion, have been announced from the chair.^ 

1614. When a question is taken by the voices, and the speaker 
has declared that the ayes have it, or the noes have it, as the case 
may be ; if his decision is called in question, that is, if any mem- 
ber rises and says that the noes have it, or the ayes have it, contrary 
to the opinion expressed by the speaker ; this entirely does away 
with the effect of the speaker's decision, and makes it necessary 
to ascertain the sense of the house by a division. The question is 
then again open for debate ^ until the numbers which are the result 
of the division have been announced. 

1615. When a question is taken by yeas and nays, according to 
the practice in this country, the question is open for debate until, 
after having been stated by the speaker, the clerk has proceeded 
to call the roll, and one member at least has answered to his name.* 

1616. K a member rises to speak whilst the question is yet 
open for debate, but is not observed by the speaker at the time, 
his right to speak wiU be admitted, whenever the fact of his having 
risen in time is brought to the knowledge of the house, and the 
question "will be again opened for debate in the same manner as 
before, even though it may have been taken in the mean time, and 
the result declared by the speaker.^ 

» May, 241; Scobell, 23, 24; Romilly, 274. * J. of H. VL 446; Same, ITth Cong. 1st 

2 Hans. (1), XL 572. Sess. 216, 217. 

8 Pari. Keg. V. 167. ^ May, 241; Hatsell, IL 102, n.; Debates in 

Commons, 27tli January, 1789. 



628 LEGISLATIVE ASSEMBLIES. [PaRT VI. 

CHAPTER FIFTH. 

OF THE RULES RELATING TO RELEVANCY IN DEBATE. 

1617. The rules of order relating to debate, which have thus 
far been considered, have reference to the times when, and the 
circumstances under which, a member may address the house ; 
those which follow relate to what may or may not be said by a 
member, or introduced by him into his remarks, in addressing the 
house. 

1618. If it is essential to the despatch of busmess in a delib- 
erative assembly, and to its efficient proceeding, that there should 
be no speaking but to a question, it is not the less so, that what- 
ever is said in debate should have reference to that question. 
Hence, it is an established mle, that every member who speaks 
should speak to the question.^ This rule requires to be explained 
in reference, first, to the question itself, and, secondly, to the man- 
ner of speaking to it. 

Section I. As to the Question itself. 

1619. The question, to which a member in possession of the 
house is bound to speak, is that which was last proposed from the 
chau, which is thus immediately pending, and which, accord- 
ing to the course of parliamentary proceedings, is next to be taken ; 
thus, if, during the pendency of any question, a motion is made to 
amend that question, or for the previous question, or to adjourn the 
house or the debate, a.nd the question is proposed on such motion, 
the question so proposed is the question immediately before the' 
house, to which members rising afterwards must address them- 
selves. 

1620. As every member, when a question is pendmg, has, in gen- 
eral, the same right to introduce a motion with a speech, as he has 
to introduce an original motion in that manner, it is competent to 
any member, in the course of a debate, to rise and address himself to 
a question which he intends to introduce, provided that question 
is one which may then regularly be moved. 

1621. If a point of order, arising in the course of a debate, is 

1 See also Coiig. Globe, III. 261. 



Chap. V.] eelevancy in debate. 629 

made the subject of a formal motion and question, the rules already 
stated are applicable ; if no such formal motion or question is made, 
every member may speak to a point of order, either aheady sug- 
gested, or which he himself proposes to suggest. 

1622. If a member, rising to speak, mistakes the question, 
through inadvertence, or ignorance, or misapprehension, he may be 
interrupted by the house, or by the speaker, whose duty it more 
particularly is to do so, and be set right ; after which, he may pro- 
ceed, addressing himself to the question.^ 

1623. It frequently, indeed almost continually, happens, that 
when a question is pending, and under discussion, another question 
is moved upon it, which, for the time being, supersedes or suspends 
the first. When this takes place, the secondary or last moved 
question becomes the question immediately before the house, and 
is that to which members in speaking must address themselves. 
As the main question is then suspended, and cannot be spoken to, 
it is often very important to know, how far it is involved in, and 
open to discussion, under the secondary question ; inasmuch, as 
by the disposition of the latter, the former is frequently disposed of, 
at the same time, either temporarily or finally. 

1624. There are some secondary questions, which necessarily 
involve the main questions upon which they are moved ; inasmuch 
as a decision of them one way includes a decision of the main 
question ; and when questions of this description are moved, the 
merits of the main question are open for discussion. 

1625. A motion to adjourn the house is a secondary motion, the 
decision of which one way involves a decision of the main ques- 
tion; as, if carried in the affirmative, the main question is sup- 
pressed for the time being; and consequently, on a motion to 
adjourn, the merits of the main question, that is, the question 
pending and upon which the adjournment of the house is moved, 
are open to discussion, on the ground of the present importance 
and urgency ^ of that question.^ 

1626. A motion to. adjourn the debate is also a secondary 
motion, the decision of which one way, that is, in the affirmative, 

^ Grey, IX. 39. the session of 1849, a stricter practice ha* been 

« Hans. (3), LXII. 219. enforced, and Mr. Speaker has called upon 

* It seems that " Considerable laxity had, members to confine their observations upon 

until recently, prevailed in allowing irrele- such motions to the question properly before 

vant speeches upon questions of adjournment, the house, namely, whether the house should 

which were regarded as exceptions to the adjourn or not." May, 244. 
general rule : but since the commencement of 

53* 



630 LEGISLATIVE ASSEMBLIES. [PaET VI. 

involves a decision of the main question, which is thereby post- 
poned for a time. In this motion, therefore, the main question is 
clearly involved, and may be spoken to on its merits.^ 

1627. The previous question is a motion of the same kind, the 
decision of which either way involves to a certain extent the 
decision of the main question. If the previous question is carried 
in the affirmative, the main question must be taken immediately, 
without further debate, or opportunity for amendment, and subject 
to all the objections, either as to time or as to form, which can then 
be urged against it, v^'hich objections may be fatal ; on the other 
hand, if the previous question is carried in the negative, the main 
question is thereby suppressed for the day ; so that whichever way 
the previous question may be decided, the decision of it involves, or 
at any rate affects, the decision of the main question. On the 
previous question, therefore, the merits of the main question are 
open to discussion. 

1628. There are other secondary questions which do not neces- 
sarily, but may or may not, according to their form, involve the 
main questions upon which they are moved. Motions to amend are 
of this description ; if it is moved to amend in such a form, that, if 
the motion is carried in the affirmative, the effect of it is to suppress 
the main question as originally moved, the merits of that question 
are clearly involved in the question of amendment ; if made in such 
a form, that, if decided either way, the main question ' remains as 
before, then the merits of that question are not involved in the 
question of amendment. 

1629. A motion to amend, by leaving out aU but the formal or 
technical words of the main question, for the purpose of inserting a 
different motion, is a motion of the former description, as if 
resolved in the affirmative, the words of the motion as originally 
made are suppressed, and which consequently involves in its 
decision a decision of the main question. 

1630. A motion to amend, by leaving out certain ^words either 
simply or for the purpose of adding other words, may or may not 
involve the merits of the main question, according to the effect 
which the amendment ^\dU have upon it, if it shordd be adopted. 
The same may be said of motions to amend by inserting or adding 
words. Li determining how far the main question is involved in 
amendments of this character, it seems proper to inquire, whether, 
after the question is taken on the amendment, the main question 

1 Pari. Deb. lU. 164; Hans. (3), LXIL 153,174. 



Chap. V.] relevancy in debate. 631 

will be open for discussion as before ; and according as it will or 
will not be so open, to consider it involved in or independent of 
the secondary question. 

1631. The following case affords an illustration of this rule. A 
resolution reported by the committee of supply being under con- 
sideration, it was moved to amend by reducing the sum granted ; 
a member thereupon rising and objecting to the resolution gener- 
ally, he was called to order by Mr. Addington, who had been 
speaker, on the gi-ound, that it was not open to him to object gen- 
erally to the resolution, after the motion for amending it ; and the 
speaker. Sir John Mitford, said, " that the member would have an 
opportunity of opposing the whole of the resolution, when the 
question was put upon the resolution generally." ^ 

1632. The foregoing application of the rule as to relevancy is 
derived entirely from the practice of the British parliament, where 
it prevails exclusively. In this country, in which the use of sub- 
sidiary or secondary questions, for the disposition of other ques- 
tions, is much more common, than it is in parliament, the ten- 
dency has undoubtedly been to prevent the debate on these mo- 
tions, from branching out into the merits of the main question, 
although the latter are somewhat involved, at least on one side. 
Thus, it has been held in congress, that the merits of the main 
question are not open for discussion, on the question of discharging 
the committee of the whole ;2 on postponing to a day certain;^ on 
questions to recommit,'^ to commit,''* or refer ; ^ on motion for a caU 
of the house ; ' on motion for leave to introduce a bill ; ^ on motion 
for the previous question under the common parliamentary law ; ^ 
on motion to make a bill a special order ; ^° on the question that a 
committee have leave to send for persons and papers.^^ 

1633. On the other hand, it has been decided in the same as- 
sembly that the luerits are open for discussion on a motion to post- 
pone indefinitely ; ^^ on passing a bill ; ^^ on filling blanks ; ^^ and on 
resolutions of inquuy,'^ On questions of amendment ; ^'^ and on 

1 Pari. Reg. LXI. 258. 8 Cong. Globe, VIH. 178; Same, 415. 

2 Reg. of Deb. II. Part 2, 794, 2371; Cong. » Cong. Globe, X. 53, 59. 
Globe, III. 249, 253. lo Cong. Globe, IX. 101. 

^ Reg. of Deb. II. Part 2, 2510; Cong. " Cong. Globe, XIII. 356. 
Globe, III. 245. 1^ Cong. Globe, IV. 88. 

* Reg. of Deb. IV. Part 1, 544. is Cong. Globe, IV. 125. 

5 Reg. of Deb. VI. Part 2, 757, 865 ; Same, " Reg. of Deb. II. Part 2, 2612. 
IV. Part 2, 1965, 1966. i5 Reg. of Deb. III. 788, 789. 

«Reg. of Deb. X. Part 2, 2618; Cong. Globe, !» Reg. of Deb. III. 880; Same, IV. Parti, 

01. «C6. 869; Same, IX. Part 2, 1662; Same, IV. 

T Beg. of Deb, VI. Part 2, 1037. Part 1, 871, 874, 



632 LEGISLATIVE ASSEMBLIES. [PaRT VL 

questions to print ;^ the merits of the main question are open or 
not according to circumstances. Questions to reconsider,^ and 
questions to instruct a committee," do not generally open the whole 
subject, but only according to the nature of each motion. 



Section II. As to the MA^irxER of Speakxn'g to the Question. 

1634. La regard to the question itself, there can seldom be any 
difhculty in applying the rule as to relevancy, and in compelling 
members to observe it. But, ^^'hen the question is not mistaken, 
and a member is professedly speaking to that which is before the 
house, it is often a matter of extreme difficulty, in the first place, to 
decide whether he is or is not wandering Irom the question ; and, 
secondly, if need be, to restrain the debate within the proper limits. 

1635. This difficulty is partly inherent in the nature itself of the 
subject, wMch makes it difficult, if not impossible, to decide before- 
hand, in what manner a question may or may not be pertinently 
treated ; in part, also, it lies in the danger there would be of infring- 
ing upon the freedom of debate if, on every occasion, a member 
could be obliged in advance, to explain the relevancy of every 
topic which he proposed to introduce into the debate ; and partly 
in the difficulty there frequently is in perceiving the relevancy of 
a topic, which a member introduces into his speech, until he has 
concluded what he had to say on that topic. 

1636. Much, therefore, must be left to the judgment and dis- 
cretion of the members, as to the topics which they introduce, and 
the manner in which they treat them, when addressing the house ; 
and much left to the patience, forbearance, and good feefing of the 
house itself. It is to be considered, on the one hand, that mem- 
bers, who desire to possess or retain any influence with the house, 
will seldom trespass in tliis respect, \^ithout at the same time be- 
coming so obviously disorderly, by personalities or otherwise, as 
clearly and unequivocally to stibjeet themselves to the animad- 
version of the house ; and, on the other hand, that the house will 
seldom be harsh in its judgment, or severe in the apphcation of its 
rules, where it is manifest that the member speaking is honestly 
addressing himself to the question, and sincerely deshous to inform 
the house of what he deems important to its decision. 

1 Eeg. of Deb. IV. Part 2, 1490; Same, X. Globe, V. 86; Same, VI. 145; Same, XVIH 
Part 4, 4273. 4274. 514; Same, XX. 517. 

a Reg. of Deb. XII. Part 2, 1990 ; Cong. 3 Cong. Globe, III. 262. 



Chap. V.] relevancy in debate. 633 

1637. The rules relating to relevancy in debate, therefore, though 
established with a view to their enforcement by the house, as weU 
as for the du-ection and government of the members individually, 
are much more effectual in the latter than in the former mode of 
their operation. It is in the power of the members, and it is un- 
doubtedly their duty, to observe these rules w^ith strictness ; if they 
fail to do so, it then becomes the duty of the speaker and of the 
house, to endeavor to restrain them for the future, within the proper 
limits of order ; and, also, as far as may be, to do away with the 
effect of any irregularity, which may have been committed before 
it could be prevented, or which may ha\ie passed at the time with- 
out notice, or was perhaps considered of so trivial a character as to 
be deserving of no attention. 

1638. In the earlier period of parliamentary history, members 
were at liberty to address the house, without a question being first 
proposed, until from the turn of the debate, a question had been 
framed by the speaker, and proposed to the house ; after which, 
those who spoke were required to speak to the question. At this 
period, when, it may be presumed, a gTcater laxity of debate was 
allowed, than is now in theory, at least, regarded as proper, it seems 
to have been referred to the house itself, to determine whether a 
member speaking should be required to confine himself to the ques- 
tion ; the rule being, as stated by Scobel : ^ " That if any man 
speak impertinently, or beside the question in hand, it stands with 
the orders of the house, for Mr. Speaker to interrupt him, and to 
know the pleasure of the house, whether they wiU further hear him." 
The rule remains substantially the same, since the introduction of 
the modern practice, which precludes all speaking but to a question 
already pending or to be introduced by the member speaking ; but 
without the qualification, referring it to the decision of the house, 
whether the member interrupted by the speaker, or otherwise called 
to order, shall be permitted to proceed. The house may and often 
does indulge a member in this respect; but, in general, the speak- 
er's judgment is acquiesced in. The rule, as to relevancy in debate, 
cannot be better expressed, than in the words of Mi'. Speaker Corn- 
wall, " that no matter introduced into a debate, which the question 
before the house cannot decide upon, is regularly debatable." ^ 

1639. When a member speaking in debate wanders from the 
question, and introduces irrelevant topics, or treats the subject im- 
pertinently, the house may either aUow him to proceed without in- 

1 Scobel, 31, 32, 33. 2 Pari. Reg. (2), IX. 466. 



634 LEGISLATIVE ASSEMBLIES. [PaET VI 

teiTuption, or he may be interrupted to order ; if interrupted by the 
house generally, or by any member, the speaker then gives his 
opinion upon the point of order, either sustaining the call, or sus- 
taining the member ; if the former, he acquaints the member wherein 
he is disorderly, and that he must speak to the question ; if the lat- 
ter, he directs the member to proceed ; sometimes, however, where 
the circumstances of the case seem to require it, reminding him of 
the question, and stating to him the line of remark which he is at 
liberty to pursue. The speaker may also call a member to order, 
without the intervention of the house, or of any other member. 
The duty of the speaker ig performed when, upon a member's be- 
ing called to order, and as often as the call is repeated, he states 
the rule, and admonishes the member to proceed in order ; if, not- 
withstanding the call to order, the offence is repeated, and tolerated 
by the house, no blame can be imputed to the speaker.^ 

1640. K a member, professedly speaking to the question, and 
not under any misapprehension as to its terms or subject, addresses 
himself to some other topic, not embraced in the question, he is 
clearly out of order, and cannot be allowed to proceed; unless 
upon the ground of an exception specially made in his favor, or 
unless his case comes within some exception resulting from a gen- 
eral or particular usage of the house. 

1641. 1. In every case, it is competent for the house to dis- 
pense with its rule, in the manner already stated, and thus create 
an exception, for the special occasion, in favor of a particular mem- 
ber. 

1642. 2. Where the member, on being interrupted, states that 
it is his intention to conclude with a motion,^ or where that fact is 
aheady known to the speaker or understood by the house.^ 

1643. 3. Where the deviation from order, of which the member 
complained of is guilty, is one, which has been tolerated by the 
house, in other members, until it has become the practice.* 

1644. 4. Where the member has deviated from the question 
merely in answer to other members, who had deviated from it 
before him.° 

1645. 5. Where the topics commented upon by the member, 
who is interrupted to order, have been suffered by the house to be 



1 The authority of the presiding officer, in s Hans. (3), XXVIL 325. 

this respect, is usually the subject of a special * Hans. (3), IV. 1251; Same, LXHL 512. 

rule. ' s Pari. Eeg. VIL (2), 154; Pari. Reg. XXV. 

2 Hans. (3), XXIX. 696. 809, 331. 



Chap. V.] relevancy in debate. 635 

introduced into the debate, and commented upon by other mem- 
bers.i 

1646. 6. Where the observations of the member, who is inter- 
rupted to order, are in explanation of expressions used by him on a 
former occasion, and which have been adverted to by other mem- 
bers in the debate.'^ But this will not justify a member in going 
from the question, for the purpose of correcting a misrepresentation 
of any thing he may have said on a former occasion, not adverted 
to in the present debate.^ 

1647. In aU those cases, however, in which a member is allowed, 
by the special indulgence of the house, in his favor, to speak to 
topics not strictly relevant to the question, (and this includes aU 
the above-named classes of exceptions except the second,) such 
member is bound to confine himself strictly to the topic, in refer- 
ence to w^hich he is so indulged, and not to treat it in such a man- 
ner, as to lead to or provoke further debjite.* 

1648. If a member, without addressing himself to any other 
topic, than the question before the house, or one which is clearly 
embraced within its terms, pursues a line of remark, the relevancy 
of which is called in question, it is often extremely difficult to 
decide, whether he shall be allowed to proceed or not. On the 
one hand, a just regard to the privileges and dignity of the house 
demands that its time should not be wasted in idle and fruitless 
discussions; on the other, freedom of debate requires, that every 
member should have full liberty to state, for the information of the 
house, whatever he honestly thinks may aid it, in forming a judg- 
ment upon any question under its consideration. The rule, there- 
fore, as to the relevancy of remarks made in debate, should have 
in view the preservation of the privileges and dignity of the 
house, so far as that can be accomplished, without infringing upon 
the freedom of debate ; and this seems to be attained by the only 
rule on this subject, which can be collected from the records of par- 
liamentary experience ; namely, that a member, speaking in debate, 
is entitled to proceed, unless in the judgment of the speaker and of 
the house, it is clear, that his observations are not applicable to the 
question. 

1649. An example or two, of the appfication of the rule, will be 
useful, by way of explanation. A petition being presented, in the 
house of commons, April 22, 1831, in favor of the reform bill, and 



1 Hans. (1), I. 801. s Hans. (1), VII. 1182, 1183. 

2 Hans. (1), XI. 755 4 Hans. (1), I. 801; Same, XI. 755. 



636 LEGISLATIVE ASSEMBLIES. [PaET VI 

a motion made that the petition be brought up, a member addressed 
the house upon that question, and, in the course of his speech, said : 
" The question was, whether that parliament was to be dissolved, 
and the members sent back to their constituents, because they had 
pronounced an opinion that the English representation should not 
be reduced." Being called to order, on the ground that there was 
no question before the house, on which they could be addressed in 
that manner, the speaker, Mr. Manners Sutton, said : " The ques- 
tion arising out of the petition "was parliamentary reform. The 
question for him to decide was, whether or not the observations of 
the member speaking had a proper application to that question ; 
not whether he had strictly adhered to what was contained within 
the four corners of the petition, but whether the general tenor and 
scope of his speech did not come within the subject-matter intro- 
duced to the house by a petition on the subject of reform ; and he 
(the speaker) must say, that according to his opinion of the rules 
and orders of that house, he could not see, that the observations of 
the member were not applicable to it." ^ 

1650. So, where a member, addressing the house on the subject 
of a petition complaining of distress, was called to order, on the 
ground of the u-relevancy of his remarks, the speaker, Mr. Manners 
Sutton, said, that " when a petition was on the table, complaining 
of distress, it was very difficult to say, what members should not 
speak of, as occasioning that distress. He could not therefore sup- 
port the member in rising to order." ^ 

1651. In another case, where a petition had been presented for 
the better observance of the Lord's day, and a member, in speaking 
upon it, took occasion to make some remarks upon two petitions 
of a similar description presented the day before, and upon the 
motives of the petitioners, the member was called to order on the 
ground, that it was disorderly to impute motives to the petitioners, 
whose petition was presented on a former night, and was not then 
before the house. The speaker, Mr. Manners Sutton, said, that 
" with respect to the reference to a petition presented on a former 
day, if it were on the same subject as the present petition, he could 
not say, that applying motives to those petitioners was disorderly. 
In all these matters, a good deal must be left to the good-sense, 
the good feeling, the taste, and the propriety of honorable members 
themselves." ^ 

1 Hans. (3), IE. 1812, 1817, 1818. « Hans. (3), XVI. 292. 

s Hans. (3), I. 1329. 



Chap. V.] relevancy in debate. 637 

1652. If, when a member is called to order, on the ground of the 
irrelevancy of his remarks, all that can be said is, that it does not 
appear in what manner his remarks are applicable to the question, 
the member will be allowed to proceed ; the speaker sometimes 
reminding him of the terms of the question, or informing him under 
what circumstances his remarks would or would not be in order. 
Thus, a member being called to order on the ground that the mem- 
ber interrupting him could not see in what manner the cu-cum- 
stances he was mentioning could apply to the question before the 
house, the speaker. Mi*. Manners Sutton, said, "that he took it for 
granted, that the member would bring his observations to bear upon 
the motion before the house, and that he meant to make some 
proposition for the consideration of the house." The member there- 
upon remarking, that the facts to which he had alluded called for 
serious consideration, the speaker reminded him of the terms of the 
question, and allowed him to proceed.^ In another case, where a 
member was called to order on similar grounds, Mr. Speaker 
Abbott said, " he conceived, that the member's observations were 
not strictly applicable to the question ; but he was always delicate 
in interfering on such occasions, as it was difficult to know whether 
the member would not conclude with something that would bring 
him within order." So, again, a member being called to order, and 
inquiry made of the speaker, whether the arguments of the member, 
with respect to the monarchy and the house of lords, had any thing 
to do with the question before the house,- the speaker said, that 
" if the member made the supposition alluded to for the purpose of 
reviving a discussion, which had already been terminated, he was 
out of order ; but if he considered his supposition pertinent to the 
question before the house, he was quite in order." ^ 

1653. Where the subject of a motion immediately pending and 
under consideration is the same with, or involved in, the subject of 
another matter also pending but not then before the house, — the 
two having different purposes in view, — it is not competent to a 
member addressing the house on the former, to enter into the merits 
of the latter, notwithstanding the subject is the same. Thus, where 
a member, having moved for certain papers relating to slaves 
imported into the West Indias, was proceeding to remark that 
these papers would show, that the king was entitled to a duty on 
all such slaves, and that consequently before any proceeding could 

1 Hans. (3), XVIH. 89. Speaker Addington, Pari. Reg. XXXVIH. 

2 " Any argument, however bad and absurd, 366. 

does not therefore become disorderly." Mr. ^ Hans. (3), XXXH. 803. 

54 



638 LEGISLATIVE ASSEMBLIES. [PaRT VL 

take place in reference to the biJl before the house, to abolish the 
trade, his majesty's consent must first be obtained, he was inter- 
rupted to order, on the ground that he could not, consistently with 
order, preface a motion for papers, by a long speech on the merits 
of a bill, which he would have another opportunity of discussing, 
and, thereupon, the speaker, JN'Ir. Abbott, " begged leave to remind 
the member how far he was in order, and how far not. Any reasons, 
showing the propriety of his motion, were certainly in order ; but to 
comment upon or discuss the question (to which that motion 
related, namely, the bill to aboKsh the slave-trade) was out of order 
and a transgression of the rules of the house." ^ 

1654. Where the remarks of a member are strictly relevant to 
the subject of the question, but are extended into a wider range 
than seems necessary, the member wdll nevertheless be allowed to 
proceed, unless restrained by the house. Thus, where, on a motion 
for the production of a paper relating to the volunteer force, a 
debate on the general subject ensued, and a member rose to order, 
and objected that if the motion was merely for the production of 
papers, it was wrong to go into the subject of it (the volunteer 
force) at such length, the speaker, ]Mi-. Abbott, said, that "the 
motion had certainly branched out into a more general range, than 
such a motion seemed to require ; but, it was in the discretion of 
the house, to permit or to restrain such extraneous proceedings ; he 
did not feel warranted in interfering to check it before, nor .did he 
now." ^ 



CHAPTER SIXTH. 

OF THE EULES RELATING TO THE SOURCES FROM WHICH THE 
STATEMENTS INTRODUCED BY A MEISIBER IN DEBATE ARE 
DERIVED. 

1655. It is the right of every member, (and it may also be said 
to be his duty,) in addressing the house upon any subject before it, 
to give his own opinion, and also to state any facts or circum- 
stances, which, in his judgment, may assist the house in forming 
an opinion upon the question.^ The facts and circumstances, 

1 Hans. (1), n. 613, 614. » Hans. (3), XLVL 158, 159. 

« Hans. (1), VI. 847. 



Chap. VL] sources of statements in debate. 639 

which a member is thus at liberty to state, are not governed by any 
rules analogous to the rules of evidence, which prevail in the ordi- 
nary courts of justice. Whatsoever may help an individual member 
to form his opinion may also aid other members in forming theirs ; 
and may therefore be stated, unless objectionable on some of the 
grounds, known and established in the law of parhament. 

1656. The facts and circumstances, stated by a member in 
debate, so far as relates to the weight to which they are entitled, in 
consideration of the sources from whence they are derived, are of 
two kinds, namely; those which lie within his own knowledge, 
either personal, or resting in belief, and those which depend upon 
the authority of others. Facts and circumstances of the first kind, 
resting upon the personal responsibility of the member himself, may 
be stated at his pleasure ; those of the second kind, resting upon 
the authority of others, may be introduced by the member, and 
made a part of his speech, provided they come from competent and 
proper sources. 

1657. There is also a third kind, which do not belong exclu- 
sively within the personal knowledge or belief of the member, nor 
are introduced on the authority of extraneous sources, but are 
equally within the knowledge of, and accessible to, all the mem- 
bers. Facts and circumstances of this description are those which 
are found upon the journals of the house ; or which are contained 
in papers and documents, in its possession, as petitions and other 
documents of the like nature, reports of committees, minutes of evi- 
dence taken at the bar of the house, and papers produced by order 
of the house and laid before it from public offices, or otherwise ; or 
which exist in the public records, as, for example, acts of parlia- 
ment. Li considering the subject of the present chapter, it will be 
convenient to notice, ^r5^, statements made by members of their 
own knowledge, or belief ; secondly, those derived from the records, 
etc., of the house itself, or other public records ; and thirdly^ those 
resting upon extraneous authority. 



Section I. Statements made by Members of their own 
Knowledge or Belief. 

1658. Facts and circumstances, lying within the personal knowl- 
edge of the member stating them, or resting in his belief, are stated 
on his individual responsibility as a member. If truly stated, — so 
far as his personal knowledge is concerned, — or honestly stated, — 



640 LEGISLATIVE ASSEMBLIES. [PaET VI 

SO far as they depend upon his belief, — his responsibility as a 
member is fully acquitted ; but, if untruly, or dishonestly stated, he 
wiU be subject to the animadversion of the house, and even to pun- 
ishment, if the house should think proper to inflict it. 



Section II. IVIatter introduced from the Jourxals or Papers 
OF THE House, or other Public Records. 

1659. In introducing matter cf this description into his speech, it 
is usual for the member to request the reading of what he so desires 
to make a part of his speech, by the clerk or other proper officer, at 
the table ; and herein, the rule appears to be, that whenever a mem- 
ber, addressing or about to address the house, desires that an 
extract from the journals, or a part or the whole of any document 
regularly in the possession of the house, as, for example, any paper 
ordered to lie on the table, or in the files of the house, or under con- 
sideration at the time, may be read, it is to be read by the clerk, as 
a matter of course, and as making a part of the member's speech.^ 
Where any matter of this kind, which a member desires to intro- 
duce as a part of his speech, has been printed by order of the house, 
for the use of the members, it is equally competent to a member to 
••ead it himself, as to have it read at the table. 

1660. Where a paper or document of the kind above referred to 
has been ordered to lie on the table, it seems, that the only mode, 
in which a member can regularly avail himself of the contents of it, 
in his speech, is by having it openly read at the table, unless it has 
been printed, in which case he may call the attention of members 
to it, by reading it himself. Li th&time of JMi*. Speaker Onslo^\^, 
Sir Robert Walpole addressing the house in debate, and attempting 
to take into his hand a petition which had been ordered to lie on the 
table, or to read the petition as it was lying on the table, and being 
called to order, the speaker gave his opinion as follows : " vlt is 
undoubtedly required by the orders of the house, when petitions are 
ordered to He on the table, that they should lie upon the table, and 
that any member, who is desirous of any further satisfaction, should 
move that they be read by the clerk, that every memberraay have the 
same opportunity of understanding and considering them, and that 
no one may be excluded from information by the curiosity or delays 
of another." ^ 

1 Grey, IV. 106; Same, IX. 216. 2 Comm. Deb. Xn. 495. 



Chap. VL] sources of statements in debate. 641 



Section IIL Matter introduced from Extraneous Sources. 

1661. In introducing matter of this description into his speech, 
the member himself reads it to the house from a document, either 
printed or written, in his possession at the time ; and, it seems, that 
unless the paper, if proper to be used, is so far before the house, as 
to be then in the possession of the member speaking, he cannot 
quote ^ from or refer to it.^ This subject has been much considered, 
at different times, with reference to printed documents, and more 
especially new^spapers. 

1662. According to the strict rule of parliamentary practice, as 
recognized and stated by Mr. Speaker Manners Sutton, February, 
1821, and which seems to have been generally enforced, until within 
a few years, it was not in order for any member, in the course of 
his speech, to read any statement from a printed paper without the 
leave of the house.'^ By the terms of the rule, every thing printed, — 
books, pamphlets, reviews, newspapers, and pubhcations of every 
description, — were embraced within it, except only those things 
which had been ordered by the house to be printed. Attempts were 
frequently made, however, notwithstanding the rule, to read from 
books, and especially from newspapers, in debate, and sometimes 
with success. In regard to newspapers, reading from them has 
been generally held to be irregular, because, in the particular case, 
it would infringe upon the well-established rule, that no allusion 
shall be made to a previous debate ; but occasion has also been 
taken, at the same time, to animadvert upon the aggravation of the 
irregularity, by referring to a previous debate, in the report of it 
pubhshed in a newspaper. Mr. Speaker GrenviUe, in 1789, after 
remarking, that " nothing could be much more disorderly than for 
any member to allude to what had passed in debate on a former 
day," added, " but it was most disorderly to make what appeared 
in a newspaper the subject of debate in that house." * Mr. Speaker 
Addington, in 1795, adverting to the irregularity of referring to a 
former debate, said " it was an aggravated irregularity to refer to a 
printed account in a newspaper." '' Mr. Speaker Abbott, in 1812, 
interrupting a member, who offered, with the permission of the 
house, to read an extract firom a newspaper, said, "it was rather a 

» Hans. (3), XLIV. 450. « Pari. Eeg. XXV. 406, 407. 

2 Pari. Reg. LXV. 500. 6 Pari. Reg. XLIII. /i27, 528. 

« Hans. (2), IV. 922, 923. 

54* 



642 LEGISLATIVE ASSEMBLIES. [PaET VL 

novel thing to introduce newspapers, and make references to them." ^ 
Lord Chancellor Eldon, also, in the same year, took occasion to 
remark, that "in the course of thirty years' parliamentary expe- 
rience, he had never witnessed any thing so monstrous and dis- 
orderly as the production of a newspaper in that house." '^ The 
reason why newspapers were thus peculiarly obnoxious was, that 
the publication of the debates and proceedings "v\^as a breach of the 
orders of the house. Reading from printed books, containing ac- 
counts of parliamentary proceedings, does not seem to have been 
regarded "udth so much severity. In 1794, Mr. Speaker Addington 
aRowed the debates on the traitorous correspondence biU, in 1722, 
to be read from a printed volume, " drawing the distinction betw- een 
questioning the words of a member now of the house, whose words 
might thus be misrepresented, and reading speeches of members 
long since dead." ^ In regard to reading from printed documents 
or books matters not connected with parliamentary proceedings, 
the rule, as above stated by Mr. Speaker Abbott, does not appear 
to have been rigidly enforced ; and, on that occasion, the speaker, 
after stating the rule, added, that it had not been strictly insisted 
upon, and the member proceeded to read the extract to which he 
had referred.* In 1832, a member addressing the house for the 
purpose of bringing forw^ard a motion on the subject of flogging in 
the army, and reading at considerable length fr-om a pamphlet on 
the subject, he was called to order on the ground, that, though he 
might read statements of facts, yet, when he proceeded to read not 
facts but arguments, he was exceeding the usual limits allowed to 
members in quoting fr-om published works ; and Mr. Speaker 
Manners Sutton, said, " it was difficult to say, precisely, what should 
be the limits to which any gentleman might proceed, in reading 
extracts from a printed document, as a portion of his speech ; the 
matter must depend upon the feelings of the house, and the dis- 
cretion of the member, though he would undoubtedly govern him- 
self according to what he perceived to be the sense of the house on 
the subject." ^ 

1663. The foregoing extracts show, that the practice of parlia- 
ment, in regard to reading from books and papers, was neither in 
accordance -^dth the rule as admitted in theory, nor so uniform and 
consistent with itself, as to become the fomidation of a new rule on 



1 Hans. (1), XXI. 191. * Hans. (2), IV. 922, 923. 

2 Hans. (1), XXIL 54, 55. 6 Hans. (3), XHI. 884. 

3 Pari. Eeg. XXXVm. 279, 280. 



Chap. VI.] sources of statements m debate. 643 

the subject. In the year 1840, however, a proceeding took place in 
the house of commons, which has had the efTect to put newspapers 
on the same footing with all other printed books and documents, 
and to settle the practice in regard to reading extracts from printed 
publications generally. A member, in the course of his speech, 
proceeding to read an extract from a newspaper, which he had cut 
out for the purpose,^ he was interrupted by the speaker, Mr. Shaw 
Lefevre, who laid down the rule of the house, that it was not com- 
petent to any member to read a newspaper in the house. A con- 
versation thereupon ensued upon the rule of order as thus laid 
down, in which the leading members of all parties participated, and 
in which they concurred in opinion, that no distinction was to be 
made between newspapers, on the one hand, and pamphlets, re- 
views, and books, on the other, and that the recent practice, as to 
a member's making an extract, whether printed or written, from 
any printed publication, a part of his speech, had been to leave the 
matter to his own discretion.- In consequence of the opinions thus 
expressed, Mr. Speaker made no further objection, and the member 
proceeded to read without interruption the extract to which he had 
referred. 

1664. It may now, therefore, be considered as the recognized 
practice of parliament, at least, in the house of commons, to allow 
a member in the com-se of his speech to read such passages or ex- 
tracts, whether printed or written, from printed papers of every de- 
scription, as well as from books, pamphlets, reviews, or newspapers, 
as he may think proper to introduce, provided such extracts are 
otherwise unobjectionable ; and, it is presumed, there is no longer 
any distinction, in this respect, between private letters or other docu- 
ments in manuscript and printed papers. To the rule, as thus 
broadly expressed, there are certain exceptions, which are now to 
be stated. 

1665. I. It is not in order for a member to read the contents of 
any paper, which in its nature is not receivable by the house ; thus, 
where a member, in debate on a bill for raising a revenue, having 
stated, that he had received a petition from some of his constituents, 
to present to the house against certain of the provisions of the bill ; 
that he was aware that he could not present any petition against 



1 This seems to have been done, in order to fore held, " that there was no difference be 
EToid the appearance of reading from a news- tween a slip and a newspaper." 
paper; but the speaker said, as had been be- - Hans. (3), LII. 1063 lOW, 1065. 



644 LEGISLATIVE ASSEMBLIES. [PaKT VI. 

a tax bill,^ and, therefore, that he would read the petition as a part 
of his speech ; the speaker, Mr. Abbott, " submitted to the judg- 
ment of the member, whether it would be competent to any mem- 
ber, according to established usage, to read a petition, which he was 
not permitted to present. Such a proceeding did not appear as at 
aU consonant to the substance of the order, which precluded the 
admission of such a petition." The member, thereupon, merely- 
stated the circumstances of the petitioners ; ^ ^vhich it was compe- 
tent for him to state in the debate,-^ although the petitioners them- 
selves could not be permitted to bring them to the knowledge of the 
house by a petition. How far it might be competent for a member 
to state the substance of a paper, which, by the rule, he could not 
read to the house, would depend upon the nature of each particular 
case. If the paper was objectionable, on account of its form merely, 
the contents might undoubtedly be stated ; if, on account of the 
nature of the contents, then neither the substance nor the language 
ought to be received. 

1666. II. Where the question pending, and in reference to which 
the paper is proposed to be read, is the production of the paper 
itself, it cannot be read : thus, where a member rose to move for 
the production of a paper, and, to sustain his motion, was proceed- 
ing to read certain passages from the paper itself, the speaker, 
Mr. Abbott, informed him, " that it was not regular to read to the 
house that which he was asking the house to order to be produced. 
It was the same as with a petition of which a member might state 
generally what was the scope and nature, but it was not allowed to 
be read, even at the table, until the permission of the house was 
received." ^ In this case, it would undoubtedly be competent for 
the member to state the substance of the paper. 

1667. III. Where the paper, proposed to be read, is one which 
the house has refused to order the production of during the then 
present session, it cannot be read : thus where a member, in debate, 
read from a printed despatch of the East India Company which 
had been published, the opinion of the directors, on a particular 
subject, and was called to order, on the ground, that it was irregu- 
lar to refer to opinions which were not before the -house, the 
speaker, Mr. Abbott, decided, * that if this parhament had refused 
[to order] the document, which the member was quoting, it would 

1 This restriction on the right of petition is ^ Pari. Eeg. (2), X. 116, 117. 
BOW removed. Coram. Jour. XCVIL 191. * Hans. (1), XH. 1043. 

a Hans. (1), H. 1060. 



Chap. VIL] order among the members. 645 

never consent to receive that indirectly, which it had directly 
refused. But, if the paper had not been refused by this parliament, 
he was of opinion, that the member was perfectly in order, when 
he made use of it in the course of his argument." ^ 

1668. IV. Letters and other communications, whether v/ritten or 
printed, emanating from persons out of the house, and referring to, 
commenting on, or denying, any thing said by a member, or express- 
ing any opinion as to any proceeding, within the house, cannot be 
read by a member in debate. The only occasion, upon which any 
such communications could be brought before the house would be 
in moving for a committee on the subject, or in examinations 
before such a committee.^ 

1669. V. Where the language of the document is such as would 
be disorderly and unparliamentary, if spoken in debate, it cannot 
be read. Thus, where a member was proceeding to read quota- 
tions from a written or printed document, couched in language 
which was unfit for publication, and which seemed to excite a very 
general feeling of disgust in the house, and was called to order, 
the speaker said, " that though the member was only stating facts," 
(he had justified himself on that ground,) " it was always necessary 
to use parliamentary language. No language could be orderly in 
a quotation, which would be disorderly if spoken. The passage 
read was certainly of that natm-e, and therefore he must request 
the member not to read any more of the offensive passages." ^ 



CHAPTER SEVENTH. 

OF THE RULES RELATING TO THE PRESERVATION OF ORDER, 
DECENCY, AND HARMONY, AMONG THE MEMBERS. 

1670. The rules, embraced in this branch of order in debate, 
relate, I. To the manner in which the individual members are to 
be designated ; II. To their exemption from being personally 

1 Hans. (1), X. 700. 3 Hans. (3), XVI. 217. 

2 Hans. (3), LXI. 141; Same, 661, 662; 
Same, LXIV. 261. 



646 LEGISLATIVE ASSEMBLIES. [PaKT VL 

addressed or appealed to ; and, III. To their exemption &om being 
personally remarked upon, or, in other words, to personality in 
debate. 



Section I. As to the Maxner dt which the Individijal 

MeMBEES ABE TO BE DESIGNATED. 

1671. In order to guard as much as possible against the excite- 
ment of all personal feeling, either of favor or of hostihty, by sepa- 
rating, as it were, the official from the personal character of each 
member, and having regard to the former only in the debate, it is 
an estabUshed rule, that no member is to refer to another in debate 
by his name, but to describe him by his seat, or as the member who 
spoke last, or last but one, or on the other side of the question, or 
by some other equivalent expression. Li the house of peers, every 
lord is alluded to by the rank he enjoys; as "the noble marquis," 
or " the right reverend prelate ; " and, in the commons, each mem- 
ber is distinguished by the office he holds, by the place he repre- 
sents, or by other designations ; as " the noble lord the secretary 
for the colonies," the " honorable or right honorable gentleman the 
member for York," or the "honorable and learned member who 
has just sat down." A member, who belongs to the profession of 
the law, is designated as "honorable and learned;" one who 
belongs to the naval or nuhtary service, as " honorable and gal- 
lant." 

1672. The terms made use of for this purpose, though estab- 
lished by practice, are not the only ones that may be employed ; 
and, of com'se, other equivalent terms may be resorted to, provided 
they are respectful; but, if ironical, as where a member was 
designated as " honorable and religious,'^ ^ they vsill be disorderly. 
The rule is confined to members only, and does not include peti- 
tioning candidates.^ 

1673. But though it is irregular to mention a member by his 
name, it does not seem to be so, to refer to him by the name of his 
family, or that of his ancestors, in the way of historical allusion ; 
thus, when Sir James ^lackintosh, in debate, alluded to " a right 
honorable gentleman who bears the name of York, and in whose 
veins the blood of Somers flows," and iMr. Charles Yorke rose to 
order, iMr. Speaker Abbott observed, "that he understood the 

1 Hans. (1), XXX^^. 1291. '- Hans. (1), ATH. 90. 



Chap. VIL] order among the members. 647 

honorable and learned gentleman to speak historically, not with an 
intention to name any member." ^ 



Section II. As to the Exemption of Members from being 

PERSONALLY ADDRESSED OR APPEALED TO, IN DeBATE, BY OTHER 

Members. 

1674. Freedom of debate implying not only liberty to state what 
a member thinks proper for the information of the house, but also 
to take his own time for doing so, and to refrain from making any 
statement at all, unless he thinks proper; it is held to be an 
infringement of this freedom, for one member to put questions or to 
make personal appeals to another, in the course of debate.^ Such 
appeals are, however, sometimes made, and, if the irregularity is 
waived on the part of the house, and the member interrogated sees 
fit to answer, he is at liberty to do so ; but if he declines or refuses, 
— standing on his rights as a member, — it is not in order to argue 
or predicate any statement upon such refusal.'^ 

1675. The following are examples of the irregularity alluded 
to, namely : where a member, in debate, called upon another who 
h^id previously spoken to explain some part of his speech ; * where 
a member, having first stated that another member, in the 
course of a speech, had called a certain periodical publication, 
seditious trash, and had since written to the editors praising and 
encouraging- the publication, then asked the member, whether he 
denied that he had done so ; ^ where a member, having first called 
the attention of another member to certain observations of the lat- 
ter respecting him, in a former debate, called upon the naember 
either to retract the charge contained in those observations, or to 
state the grounds on which he made it ; ^' where a member, in the 
course of his speech, having made some remarks upon the duke of 
Wellington, another member rose, as he said, to order, and de- 

1 Hans. (1), XXXII. 983. It has been de- another, except in a committee of inquiry, 
cided in the house of representatives of the Hans. (1), XH. 297. See also Cong. Globe, 
United States, that it is not disorderly for a V. 26. 

member in debate to read the names of pres- ^ Cav. Deb. H. 239; Same, 241; Pari. Reg. 

ent members of the house, from the printed XI. 16; Hans. (3), V. 200; Same. XII. 918; 

journal of a former house. Reg. of Deb. XH. Same, XXX VIL 1318; Same, LXIII. 424; 

Part 2, 2281, 2284. See also Cong. Globe, XL Same, (2), XXI. 742. 

55. 4 Pari. Reg. XI. 16. 

2 Mr. Speaker Abbott observed, that it had ^ Hans. (3), V. 200. 

been determined in more instances than one, » Hans. (2), XH. 1314, 1316. 
that 110 member had a right to examine 



648 LEGISLATIVE ASSEMBLIES. [PaRT VI. 

manded, whether the member m.eant to say, that the, etc. ; ^ where 
a member, having first read from a newspaper a report of the re- 
marks made by another member, called upon that member to say, 
whether he denied, or adopted the publication ;2 where a member 
expressed a hope, that a certain member, whom he saw in his 
place, would be present at a particular discussion, in order that he 
might become sensible of the scandalous manner in which he had 
misrepresented the opinions and the objects of the emigration com- 
mittee.3 



Section III. As to the Exemption of Members from being 

PERSONALLY REMARKED UPON, OR, IN OTHER WORDS, AS TO PER- 
SONALITY IN Debate. 

1676. It is a rule, as we have already seen, that every member, 
in speaking, is to confine himself to the question; it is conse- 
quently disorderly to speak to any other topic ; it is doubly so to 
digress from the question, for the purpose of attacking the person 
of another member ; for, besides the Avaste of time, resulting from 
such a digression, a personal attack upon a member cannot but 
tend to a disturbance of the harmony, order, and decorum, which, 
ought to prevail in a deliberative assembly. " The regard due to 
the dignity of the house," says Mr. Speaker Onslo\v, " ought to re- 
strain every member from digressing into private satire ; for, in 
proportion as we proceed with less decency, our determinations 
wiR have less influence." * " The freedom of debate," says Mr. 
Speaker Abercrombie, " can never be better secured than by hon- 
orable members' conducting it with temper." ° " Personal alterca- 
tions," says the earl of Sandwich, " always impede public business, 
— answer no one substantial or beneficial purpose whatever, — and 
are only productive of ill humor." '° " Hence," says Mr. Speaker 
Addington, " there is no rule better established in the house, than 
that qui digreditiir a materia ad personam is disorderly, that what- 
ever wanders from the subject in debate, and is converted into a 
personal attack, is contrary to order." "^ 

1677. The rule, therefore, relating to personal reflections occurring 
in debate, may be stated thus, namely : that it is doubly disorderly 

1 Hans. (3), XH. 918. 6 Hnns. (3), XXVIH. 15. 

2 Hans. (3), XXXVH. 1318. « Pari. Reg. IV. (L.), 144. 

3 Hans. (2), XXI. 742. J Pari. Eeg. XXX VIH. 367. 
* Comm. Deb. XII. 299. 



Chap. VIL] order among the members. 649 

for any member, in speaking, to digress from the question before 
the house, and to attack any other member, by means of opprobri- 
ous language, applied to his person and character, or to his conduct, 
either in general, or on some particular occasion, and tending to 
bring him into ridicule, contempt, or hatred, with his fellow-mem- 
bers, or to create ill blood in the house.^ 

1678 Personality in debate is thus an offence both against the 
individual member attacked, and against the house itself, which 
subjects the offender to animadversion and censure at the pleasure 
of the house ; unless, upon proper apology, explanation, or retrac- 
tion, the house is satisfied ; and though the house will always have 
regard to the feelings of the member attacked, it is not competent 
for him to waive the irregularity: thus, a member having made 
some strong personal allusions to Mr. Pitt, and being called to 
order by Mi*. Speaker Addington, Mr. Pitt said " he was willing 
to waive the point of order so far as he was personally concerned, 
for nothing the honorable gentleman could say could possibly 
offend him ; " but the speaker said, " it could not be supposed that 
he had interrupted the honorable member on any idea of what 
might be the personal feelings of any gentleman, but because he 
thought he was going beyond the established rules of debate." ^ 
. 1679. The whole law of parliament on this subject is admu-ably 
summed up and expressed in the following standing order of the 
lords : " To prevent misunderstanding, and for avoiding of offensive 
speeches, when matters are debating, either in the house, or at 
committees, it is for honor's sake thought fit, and so ordered, that 
all personal, sharp, or taxing speeches be forborne ; and whoever 
answereth another man's speech shall apply his answer to the mat- 
ter without wrong to the person ; and as nothing offensive is to be 
spoken, so nothing is to be ill taken, if the party that speaks it 
shall presently make a fair exposition, or clear denial, of the words 
that might bear any ill construction ; and if any offence be given in 
that kind, as the house itself will be very sensible thereof, so it will 
sharply censure the offender, and give the party offended a fit 
reparation, and full satisfaction." ^ 

1680. " It is impossible," says Mr. Hatsell, « to lay down any 

1 See, also, concerning the subject of this Same, X. Part 2, 27, 28 ; Same, Part 3, 3760, 

section, J. of H. IV. 64; Same, VII. 188; 3765; Same, XII. Part 2, 2317, 2318, 2539, 

J. of S. 23d Cong. 2d Sess. 161 ; J. of H. 24th 2540, 2541 ; Same, VII. 475 ; Same, VIII. 

Cong. 1st Sess. 360; Ann. of Cong. 8th Cong. Part 1, 660; Same, Part 2, 2340, 2548; Coug. 

2d Sess. 1115; Reg. of Deb. III. 1046; Same, Globe, XIII. 576; Same, XV. 523. 

IV. Part 1, 1192, 1193; Same, 1456; Same, 2 Pari. Reg. XXXVIII. 290. 

VIII. Part 3, 3876; Same, IX. Part 2, 1920; ^ Hans. (3), XIX. 357. 

55 



650 



LEGISLATIVE ASSEMBLIES. 



[Paet VI, 



speciiic rules, in regard to injurious reflections uttered in debate 
against particular members, or to declare beforehand what ex- 
pressions are or are not contrary to order; much depends upon 
the tone and manner, and intention, of the person speaking ; some- 
thing upon the person to whom the words are addressed, as, 
whether he is a public officer, or a private member not in office, or 
whether the words are meant to be applied to his pubHc conduct, 
or to his private character ; and something upon the degree of 
provocation, which the member speaking had received from the 
person he alludes to ; and ah. these considerations must be attended 
to at the moment, as they are infinitely various and cannot pos- 
sibly be foreseen in such a manner, that precise rules can be 
adopted with respect to them." 

1681. Some idea, however, perhaps an adequate one, of the 
law and practice of parliament with relation to personal attacks, 
may be obtained, by considering them as divided into the two 
classes of offensive remarks concerning the character or acts of a 
member, and remarks imputing improper motives to him for his 
parliamenteay conduct, and by giving some examples of each by 
way of illustration. 

1682. The foUo^dng are instances of offensive expressions, at- 
tacking the person or conduct of a member, which have been con- 
sidered disorderly, namely : one member saying of another that he 
could expect no candor from him ; ^ speaking of a member's affect- 
ing to deplore the distresses of the country ; ^ saying that the ob- 
servations of a member in the house were insulting to his constit- 
uents, to the house, and to the country ; ^ speaking of a member's 
habit of uttering libels in the house ; * sa}dng that a certain member 
had called another an impertinent fellow ; ^ charging a member with 
being guilty of gross misrepresentations,^ or with having acted basely 
or from base motives ; '' saying of a member, that when allusion 
was made to certain unhappy transactions, he was observed indulg- 
ing in a smile unworthy of a man ; ^ saying that the house had a 
right to know whether a member meant what he said, or knew 
what he meant ; ^ reiterating a statement as made by a member, 
which the member has aheady explained or denied ; ^^ making allu- 
sion to steps to be taken elsewhere to call in question a statement 



1 Hans. (1), XXXm. 505. 
2Hang. (2), IV. 243. 
8 Hans. (3), III. 1152, 1153. 
4 Hans. (3), IIL 1194. 
6 Hans. (3), XXVm. 502. 



« Hans. (2), VHI. 410. 
T Hans. (3), XXVII. 120. 

8 Hans. (3), IV. 561. 

9 Hans. (2), IV. 240. 

10 Hans. (1), H. 315; Same, (3), LXL 53. 



Chap. VIL] order among the members. 651 

made by a member in the house ; ^ saying there was some degree 
of novelty in a member's mode of attack against a report origi- 
nating from thu-ty-one members, to whose character for honor and 
integrity, he would not do any injury by comparing it with the 
quarter from which the attack was made.- 

1683. There are some epithets, which are considered as convey- 
ing a personal charge, and as being disorderly, or otherwise, accord- 
ing to the sense in which they are used, of which the following are 
examples: where a member, in debate, declared the statement of 
another to be fdlse^" and was called to order, his explanation, that 
he used the word in its parliamentary sense, and not offensively as 
to the veracity of the member, whose statement he thus impugned, 
was admitted as satisfactory ; * where a member, in debate, made 
use of the word indecent^ and was called to order, the speaker, Mr. 
Abbott, observed, that, " if he had understood the phrase used to 
be applied personally, he should have thought it highly disorderly ; 
but as simply descriptive of any proposition that might be sub- 
mitted to the house, it did not appear to him to offend against the 
laws of parliamentary debate ; " ^ where a member said he protested 
against the tone and language, which another had dared^ to use, 
and was called to order on the ground, that it was not in order to 
apply the word dare to any remark made by a member, the speaker, 
Mr. Manners Sutton, said, " that, undoubtedly, if the word dare 
were to be interpreted in the sense in which the member objecting 
took it, it would be quite disorderly ; but the house would allow 
him to say, that the term was one, which was frequently used in 
debate, without any offensive intention on the part of the member 
using it." " 

1684. The following are examples of offensive remarks, imputing 
improper motives to members for their parliamentary conduct: — 
a member saying that he could not conceive of another member's 
opposing the measure before the house, upon any principle, but 
that of obstructing the defence of the country ; ^ questioning the 
sincerity of a member's professions as to the grounds upon which he 
acted ; '^ saying that what another member had said in debate must 



» Hans. (3), LIX. 1006. 659. See also J. of S. 23d Cong. 2d Sess. 161; 

a Pari. Reg. XXXVHI. 367; Same, (2), XV. J. of H. 30th Cong. 1st Sess. 348. 
87. 6 Hans. (1), XXH. 1012. 

3 See also Reg. of Deb. XII. Part 2, 2539, « See also Reg. of Deb. X. Part 2, 2728. 
8540, 2541. f Hans. (2), VII. 1394. 

* Hans. (1), XXII. 1012; Same, (3), VI. 656, » Pari. Reg. LI. 231, 232. 

» Pari. Reg. XXVII. 527, 528. 



652 LEGISLATIVE ASSEMBLIES. [PaRT VL 

be considered not so much addressed to parliament as to certain 
persons in another place ; ^ imputing to members, that they, enter- 
tained views contrary to the just discharge of their public duties, as 
where a member said, that he trusted his amendment would meet 
vnxh the support of those who came there to benefit the country, — 
he did not hope for much &om those who came there to benefit 
themselves.^ 

1685. In considering, however, and determining upon, the charac- 
ter of words of this description, a distinction must be attended to, 
betv\^een the effect or operation of a measure, and the intention of 
a member in opposing or advocating it. Thus, ^'here a member 
was called to order for saying, " that no person could agree with the 
measure pending, without being alike an enemy to the monarch 
and the monarchy itself," the speaker, ]\Ir. Manners Sutton, in 
giving his opinion,. " drew a distinction bebtN'een an effect pro- 
spectively imputed to be the result of a motion, by way of argu- 
ment, and a motion ascribed to an individual as intending to pro- 
duce that result ; the latter -^^ould be highly disorderly, the former, 
in his opinion, not so ; " ^ and, on another occasion, where a ques- 
tion was made, as to whether it was disorderly to say, that " the 
opposition, in despair of being able to get into office, are determined 
to break down the means of administering the affairs of the coun- 
try," the speaker, IMr. Manners Sutton, said, in the first place, " that 
to impute a despau* of obtaining office to anybody T\"as an imputa- 
tion which did not come "udthin the prohibition of the orders of the 
house, but, the remainder of the phrase, if uttered there, would be 
strictly unparliamentary, and most disorderly. To impute an un- 
worthy, much less an unconstitutional motive to any honorable 
member, in the exercise of his public duty, w^as certainly unparha- 
mentary. But then, again, if the imputation were levelled only at 
the tendency of measures, and not at the intentions of the individ- 
uals who had originated them, the case "^-ould be different." * 

1686. The utmost freedom of debate being necessary and there- 
fore allowable as to public measures, and, of course, with relation 
to the conduct of ministers and other official persons,"^ a distinction 
has been made bet^^een remarks applied to the official character 
and conduct of members in office, and remarks applied to members 
in their individual character ; the latter only being considered dis- 



1 Hans. (1), XXXV. 723. * Hans. (2), \T[. 1174, 1176. 

2 Hans. (2), Yl. 69, 70. 5 HatseU, UI. 74. 
« Hans. (2), IV. 200. 



Chap. VIL] order among the members. 653 

orderly. According to Mr. Speaker Cornwall, when gentlemen's 
public conduct is to be adverted to in debate, the rule is, " to mix 
the measure with the man, and thus form a fair and tenable ground 
for animadversion ; but to take the character of a member in the 
abstract, -and make that the integral subject of discussion, was 
extremely irregular, and in the highest degree disorderly." ^ In 
accordance with the rule, as thus stated, Mr. Speaker .Addington 
held it disorderly to say, in reference to the traitorous correspond- 
ence bill, " that these conspiracies had no existence but in the foul 
imaginations of ministers ; " ^ so, where a member, being called to 
order, for questioning the sincerity of a member's professions, justi- 
fied his remarks on the ground, that when he talked of a member's 
sincerity as a public man, holding a public argument, and did not 
advert to any part of his private character, he conceived he was 
strictly in order, Mr. Speaker Addington answered, " that to ques- 
tion in that manner went to a question of the motives on which 
the member acted, and nothing could be more unparliament- 
ary." ^ 

1687. It is scarcely necessary to observe, in reference to offensive 
expressions and disorderly remarks, that when the meaning is plain, 
it is wholly immaterial what form of words may be used, or how- 
ever mysterious and disguised the language may be ; thus, where a 
member, after expressing himself in terms of severity of another, 
added, " that when he spoke of that member's conduct, or adverted 
to his sentiments, he would state nothing which he would not 
justify on every occasion, and in every place," the speaker, Mr. 
Manners Sutton, said, that " however mysterious the language was, 
he could know what meaning it was intended to convey, and he 
was sure that the house would see the propriety of his interfering, 
as the words, in his opinion, conveyed a meaning, which would tend 
to invade the order of the house." "* 

1688. Words, which are plain and intelligible, and convey a 
direct meaning, are sometimes used hypothetically or conditionally, 
upon the idea, that, in that form, they are not disorderly. But this 
is a mistake. If, notwithstanding their being put hypothetically or 
conditionally, they are plainly intended to convey a direct imputa- 
tion, the rule is not to be evaded by the form in which they are 
expressed. Thus, where a member, being called to order for per- 
sonal remarks, justified himself by saying that he was wholly misun- 



1 Pari. Reg. XXIII. 395. s Parl^Reg. XXVH. 527, 528. 

2 Pari. Reg. XXXVIII. 367. * Haus. (2), VI. 518. 

55* 



654 LEGISLATIVE ASSEMBLIES. [PaET VI 

derstood, he had put the case hypothetically, the speaker, ]\Ir. 
Manners Sutton, said, " the honorable member must be aware, that 
putting a hypothetical case was not the way to evade what would 
be in itself disorderly." ^ 

1689. In regard to words conditionally or hypothetically applied, 
where that form is not adopted for the mere purpose of evading the 
orders of the house, the rule is laid down in the following terms by 
]Mr. Speaker Abercrombie : " I always understood that terms only 
conditionally apphed were not such as called for the interposition 
of the chau- ; thus, I recollect one of the oldest members of this 
house using this phrase without reproof : ' I state in answer to the 
honorable gentleman in the strongest terms that can be hypotheti- 
cally put, that what he has said is false.' When a hypothetical 
form is once adopted, the chair is not required by his ofSce to inter- 
fere. I shah never hesitate, however, when called upon, to express 
the strongest opinion, that the use of sach language is extremely 
inconvenient, and inconsistent with the freedom as well as v\dth the 
decorum of debate." ^ 

1690. A personal attack, by one member upon another, in 
debate, is an offence against the house, in the person of one of its 
members ; which, on account of the respect due from every mem- 
ber to the character and dignity of the house,^ as well as the 
importance of preser\dng regularity in the debates,^ calls for the 
prompt interference of the speaker ; ^ in order that any irregularity, 
into which a member may have been betrayed in the warmth of 
debate, may be rectified, and that any expressions, which may be 
disrespectful to the house, or painful to the feelings of individual 
members, may be explained, apologized for, or retracted.^ 

1691. The proper time for interference is when the offensive 
expressions are uttered, and not afterwards ; ' and it may take place, 
either on the speaker's voluntary motion,^ or on the call to order of 
the member assailed,^ or of some other member,^*^ or the general caU 
of the house. 1^ 

1 Hans. (3), VHI. 722, 723. ^ Parf. Eeg. XXV. 371; Same, HXYl. 26. 

2 Hans. (3), XXYHI. 15. See also Eeg. of 8 Pf,rl. Eeg. XXXVIH. 290; Haus. (2),XXI. 
Deb. Vm. Part 3, 3882, 3883; Cong. Globe, 742; Same, (3), IIL 1152, 1153; Pari. Eeg. 
XI. 777. XXVn. 527, 528. 

•' Pari. Eeg. XXX\TII. 367; Hans. (2), VL o Pari. Eeg. LI. 231, 232; Hans. (2), IV. 

69, 70. 518, 519; Same, VII. 1394. 

4 Hans. (2), VL 69, 70. w Pari. Eeg. XXXVIIL 367; Hans. (1), 

5 Comm. Deb. XII. 299; Pari. Eeg. XXIH. XXX VL 1291; Same, (2), IV. 243. 

895; Same, XXXVIIL 367; Hans. (2), VI. " Hans. (1), X. 757; Same, (2), IV, 613; 
69, 70; Same, 518. , Same, (3),in. 1194; Same, VL 656, 659. 

• Hans. (2), XVL 470. 



Chap. VIL] order among the members. 655 

1692. It would not, perhaps, be practicable, to lay down any very 
precise and definite rules, as to the occasions on which the duty of 
the speaker requires his interference ; but, from the language of 
eminent and experienced speakers,^ it may be gathered, that, where 
subjects are brought under consideration, in which members feel 
deeply interested, or where members are speaking under the excite- 
ment of great warmth of feeling, in which circumstances, expres- 
sions are likely to escape them in the heat of debate, which, though 
personal and offensive in their terms, are not perhaps intend(>d to 
be personally offensive, — it is not the duty of the speaker to nipely 
measure and weigh every expression that may chance to be used ; 
or to lay hold of particular expressions and give them a meaning 
with which they were not intended to be applied, and in which they 
possibly may not have been understood ; or, by interfering in a 
trifling matter, to give it more importance than it deserves ; or to 
understand equivocal expressions in an offensive and personal 
sense ; or, in general, to interfere at aU, unless he feels strongly that 
some personal disrespect is intended.^ 

1693. When a member is indulging in a line of remark, which, 
though apparently personal and disorderly, is of such a nature, that 
it may be explained by something to follow, it is entirely consistent 
with the speaker's duty, to wait and give the member an opportu- 
nity to conclude his sentence in such a manner as to explain what 
would otherwise, and taken by itself, be offensive and disorderly .^ 

1694. When the speaker is called upon by the house generally, 
to interfere, or Vs^hen some member rises and calls the member 
speaking to order, the speaker first delivers his opinion upon the 
point of order ; if, in his judgment, the member is not disorderly, he 
directs him to proceed ; if, on the contrary, he sustains the call to 
order, he then either simply informs the member, that he cannot 
proceed in the same manner, or, if he thinks the occasion requires 
it, calls upon him to retract, explain, or apologize. K the speaker 
himself interferes, in the first instance, he at once explains the 
reason of his interference, and proceeds as already stated. 

1695. In calling upon a member to explain, or apologize, the 
speaker sometimes accompanies the demand with remarks calcu- 
lated to allay heat, and restore harmony ; such, for example, as that 
"the gentleman must have heard imperfectly or misunderstood 

1 Hans. (1), Xn. 812; Same, (3), XXXIV. in the house, it seems to be the speaker's duty 
B32; Same, IV. 561; Same, XXVII. 120. to interfere at once. Grey, II. 407. 

2 When the member attacked is not present « Hans. (2), IV. 243; Same, (3), III. 1194; 

Same, (2), YIII. 410; Grey, IV. 128. 



656 LPGISLATIYE ASSEMBLIES. [PaET VI, 

those expressions which he so warmly condemns ; " ^ that " the 
gentleman had allowed language to escape him — unintentionally 
no doubt, — in the heat of debate, "^'hich he was sure he would be 
anxious to explain ; " - that " he was sure the honorable member 
could not mean to impute to any gentleman in that house, a pre- 
meditated and deliberate intention to use expressions such as those 
he had described ; " '^ " that he was sure the member, having so 
offended would discharge his duty by apologizing for the offensive 
expressions he had used ; " '^ or that " he was quite sure the hon- 
orable member did not mean to express what his language woidd 
imply." -5 

1696. When the speaker thus takes notice of any expression as 
personal and disorderly, and tending to introduce heat and confu- 
sion, and calls upon the offending member to explain, it is the duty of 
the latter immediately to explain or retract the offensive expres- 
sions, and to apologize to the house for the breach of order, in terms 
large and hberal enough both to satisfy the house, and the member 
of "whom the offensive expressions were used.^ The speaker's 
demand usually produces the requhed explanation, at once ; if not, 
the speaker then repeats the call for explanation, and informs the 
member, that if he does not immediately respond to it, it ^^dll 
become the duty of the chair to name him to the house ; if the 
member should still refuse, the speaker would then name him to 
the house ; upon which proceedings would immediately ensue for 
the purpose of censuring or punishing such member for his disor- 
derly conduct." 

1697. The opinion of the speaker, as to the point of order, and 
his demand of explanation, if he sees fit to make one, are usually 
acquiesced in ; though it is undoubtedly competent to the house to 
revise the one, or refuse its sanction to the other, at its pleasure. 

1698. The proceedings above described are chiefly intended to 
check disorder in debate, and to prevent misunderstanding and 
strife among the members. Another more formal mode of pro- 
ceeding, which is equally apphcable to all offences, committed in 
the use of disorderly "words, and which may of course be adopted 
in reference to the class of offences now under consideration, is to 
have the words complained of first taken down in wnriting, and en- 
tered among the clerk's minutes. This mode oi proceeding, the 

1 Cemm. Deb. XH. 299. s Hans. (3), XXXI. 474. 

2 Hans. ( 3 ), HI. 1153, 1153. s Hatsell, 11. 234, note. 

8 Hans. (3), n. 401. » Hans. (3), XXII. 115, 116, 117, 118. 

« Hans. (3), XXVH. 120. 



Chap. VIL] * order among the members. 657 

principal purpos^e of which is the censure of the offending member ; 
as well as that which takes place, when, in consequence of the 
apology demanded being refused, or the offended member's declining 
to express his satisfaction, the house takes measures to prevent the 
quarrel from being carried further ; will be treated of at length in 
another place. 

1699. The subject of the present chapter cannot be more appro- 
priately concluded than with the following judicious and sensible 
remarks of Mr. Hatsell : ^ " The difficulty which often occurs, of 
obtaining an apology for words spoken in debate, especially when 
the offending person thinks he had sufficient provocation for using 
the expressions objected to, ought to be a warning to the house, and 
particularly to the chair, to interfere at first ; and not to permit any 
expressions to pass from any member unnoticed, which, being ap- 
plied by any other member as personally offensive to himself, may 
draw fiprth further words of heat and contumely ,2 till, at last, con- 
fusion arises, — different members take a warm and eager part in 
the dispute, — and besides the time that is lost in composing the 
differences, the house of commons exhibits a scene of indecency and 
disorder, not very becoming to their character as gentlemen, much 
less as one of the component parts of the great council of the na- 
tion assembled in parliament." 

1700. What is said by the speaker,^ or of him,* is no exception 
to the rule relating to personality in debate ; and the same pro- 
ceedings may take place in relation thereto, so far as they are prac- 
ticable, as in the case of disorderly words spoken by or of a mem- 
ber ; the speaker putting the question, in the same manner. 



1 Hatsell, n. 234, note. the discussion on it protracted." By Mr. 

2 "In all mj' parliamentary experience, I Speaker Manners Sutton, Hans. (3), V. 1388. 
have never found a question of disorder miti- ^ Comm. Jour. XXXH. 707, 708 

gated or simplified by being elongated, and * Hans. (1), X. 1160, 1170 



658 LEGISLATIVE ASSEMBLIES. * [PaET VL 



CHAPTER EIGHTH. 

OF THE RULES RELATING TO THE PRESERVATION OE THE HAR- 
MONY AND INDEPENDENCE OF THE SEVERAL BRANCHES OF 
THE LEGISLATURE. 

1701. According to the constitution of the legislature, it is es- 
sential to the due and efScient performance of its functions, that 
the several branches, of which it is composed, should stand upon a 
footing of the most perfect equality, with respect to each other, and 
that they should, in every respect, be entirely independent each of 
the other.i 

1702. In order to the preservation of these essential privileges 
of equality and independence, it is important, that neither branch 
should encroach upon the other, by undertaking any matter of 
business, wMch the constitution has confided exclusively to such 
other branch; or interfere in any matter depending before it, so as 
to preclude, or even influence, that freedom of debate or of action, 
which is essential to a free council; or 'claim, and, much less, un- 
dertake to exercise, any control or authority over the persons of the 
members or officers of the other.^ 

1703. Hence, it is a general rule, that neither of the two houses 
can properly take notice of any bill, or other matter, depending in, 
or of votes given, or of speeches made, by the members of the 
other, until the same are communicated, or otherwise promulgated, 
in the usual and parliamentary manner.-^ The same rule is appli- 
cable, of course, to the sovereign or executive, so far as he is a 
branch of the legislature. 

1704. This rule proceeds upon the understanding, and takes it 
for granted, that the proceedings and debates of each house are 
known only to its own members, and witliin its own walls; and 
that they cannot regularly be made known but by itself, or taken 
notice of elsewhere, except with its own consent. But this under- 
standing, though still true in a parliamentary sense, and therefore 
impKed in all that relates to the rules of order, is, at the present 
day, a mere fiction. The proceedings and debates of both houses 
are published daily and read by all the members of both, and, in 

1 Hatsell, m. 67. » HatseU, IL 356. 

2 Hatsell, IL 356: Same, III. 67. 



Chap VII L] harmony among the branches. 659 

fact, are well known to everybody, who will take the trouble to 
become acquainted with them. 

1705. In consequence of this regular publication of the debates, 
there is a strong temptation constantly presented to members, to 
disregard the rule. " The same questions are discussed by persons 
belonging to the same parties in both houses ; and speeches are 
constantly referred to by members, which this rule would exclude 
from their notice. The rule has been so frequently enforced, that 
most members, in both houses, have learned a dexterous mode of 
evading it by transparent ambiguities of speech ; and, although 
there are few orders more important than this for the conduct of 
debate, and for observing courtesy between the two houses, none, 
perhaps, are more generally transgressed. An ingenious orator 
may break through any rules, in spirit, and yet observe them to the 
letter." i 

1706. In order to render the rule, as above stated, fully intelli- 
gible in its practical application, it will be necessary to consider 
it in a threefold point of view, namely : Fu-st, as forbidding aU 
expressions concerning the other house, or its members, or the sov- 
ereign, which, if uttered with reference to the house, of which the 
speaker is a member, would be disorderly ; second, as forbidding all 
reference to, or introduction of the proceedings or debates of the 
other house, for the purpose of commenting on them, either by 
way of answer, explanation, commendation, discussion, or animad- 
version ; and, third, as forbidding the introduction of, or reference 
to, the proceedings of the other house, or the opinion of the sov- 
ereign, for the purpose of influencing the determination of the house, 
of which the speaker is a member. 

1707. I. AU allusions and expressions, concerning the other 
house, its members, or proceedings, or concerning the sovereign or 
his acts, which, if used with reference to the house, of which the 
person spealdng is a member, would be disorderly, are unquestion- 
ably offences against the house, in which they are uttered, whether 
spoken with or without reference to any particular act or proceed- 
ing. Mr. O'ConneU's ironical description of Lord Brougham,^ 

1 May, 251. ation as to be deprived of it, — not by an ad- 

2 " Jlr. O'Connell (in debate on the ad- verse party, — but got rid of as an incum- 
4ress): It is not difficult to conclude, that the brance by his own friends. They could not 
person (if any such there be) capable of such allow him any longer to remain in an office, 
conduct, must be one of the worst judges that for the performance of the duties of which he 
ever existed, and though he may combine the exhibited a total disqualification. They had 
ludicrous character of court jester with the replaced him by an excellent person, but 
gravity of a judge, and be so unfit for his situ- nothing could diminish the contemptuous no- 



660 LEGISLATIVE ASSEMBLIES. [PaRT VL 

for which he was called to order by JMr. Speaker Abercrombie, on 
the ground of ■' the very gi'eat inconvenience which must arise from 
having a war carried on between the two houses, — in disguise, 
it was true, — but still very intelligibly," is an instance of a per- 
sonal attack upon a member of the other house.^ The parliament- 
ary experience of the same gentleman also furnishes an example of 
an attack upon the sovereign in his legislative capacity, when he 
characterized the king's speech, at the opening of the session in 
1833, as " brutal and bloody." Being called to order, and justifying 
himself on the ground, that, as the speech was the act of ministers 
and not the personal act of the sovereign, he had a right to speak 
of it in terms of severity, the speaker, Mr. Manners Sutton, " put it 
to the honorable and learned member, "whether if order and decency 
were to be preserved in the pubhc debates of the house, they could 
possibly be preserved consistently vvith the employment of such 
language, whether applied to the speech of the king's ministers, or 
to a speech just delivered by his majesty himself in person." - 

1708. In reference to offences of this description, Mr. Hatsell lays 
down the folio wmg rules for the government of the speaker and of 
the house : — " If there is any breach of the rules of decency and 
gentlemanly decorum, if public reprehension and accusation de- 
generate into private obloquy and personal reflections, it is the duty 
first of the speaker, and, if he neglects that duty, then of the house 
itself, to interfere immediately, and not to permit expressions to go 
unnoticed or uncensured, which may give a ground of complaint to 
the other house of parliament, and thereby introduce proceedings 
and mutual accusations, between the two houses, which can never 
be terminated v^dthout difficulty and disorder." ^ 

1709. If an offence of this kind should be committed, of so 
aggravated a character as to deserve censure or punishment, it can 
only be taken cognizance of by the house in which it is committed ; 
and the nature and mode of redress, or punishment, if punishment 
is necessary, must be determined upon and inflicted by it; each 
house having exclusive jmisdiction over the persons of its members, 
for all parliamentary oilences committed within its walLs.^ That 
house may, of course, either take up the matter spontaneously, or 



tion entertained of him by his own party. A but as landmarks to be avoided by ail future 

judge of that description must have been the chancellors." Hans. (3), XLV. 138, 139. 
ridicule of the bar and the terror of clients, ^ Hans. (3). XLV. 138, 139. 
one who mistook rapidity for the due admin- - Hans. (3), XV. 162. 

istration of justice, and who made decrees, ^ Hatsell, III. 74. 
which served not as examples to be imitated, * ^lay, 250, 251. 



Chap. VIIL] harmont among the branches. 661 

upon the complaint of the other, or of the individual member 
assailed.^ 

1710. 11. It is irregvilar also to refer to or inh-oduce the proceed- 
ings or debates of the other house, though there is no question 
pending at the time,^ for the purpose of making them the subject 
of comment, whether in the way of answer, explanation, commenda- 
tion, discussion, or animadversion, and whenever any such allusion 
is made in any form in which it can be brought within the control 
of the house, as disorderly, it is immediately checked by the speaker ; 
though, perhaps, the matter itself might with strict regularity be 
introduced into the debate, were it not for the impropriety of refer- 
ring for it to the other house. 

1711. The following are instances, — taken at random, — in which 
references of this kind have been checked as irregular : where a 
member said he was astonished to hear that a particular clause in a 
bm was the production of a noble lord ; ^ where a member said " he 
thought it likely that this day would not pass without a motion 
being made by a noble lord in another place ; " ^ where a member 
said, " he had read the argument of a noble earl in another place on 
this subject," etc. ; ^ making the clauses of a bill in progress through 
the other house the subject of discussion ; ^ where a member " con- 
gratulated the house and the country on the patriotic, open, and 
manly declaration made last night by an individual, a most illus- 
trious member of the upper house ; " '' where a member attempted 
to read the minister's speech, in the lords, from a newspaper, begin- 
ning with the words, "my lords;"^ where a member said, "that he 
saw, in a publication of that morning, expressions attributed to a 
noble lord, which he believed and hoped he had never made use 
of — the marquis of Londonderry was reported to have stated, in a 
public place," etc. ; ^ where a member said, " that a certain individ- 
ual had stood up in his place, in another house, to stigmatize the 
people of Ireland ; " '^^ referring to the majority by which a bill had 
passed in the other house, and commenting on the constitution 
of that majority ; ^^ where a member said, " that a noble lord, in 
another place, had thought proper to make the interests of a mighty 
people, and the captivity of Don Carlos, the subject of merri- 
ment." 12 

1 Hatsell, in. 67; May, 251. ' Hans. (2), XHI. 172. 

2 Hiins. (3), XLI. 204. » Hans. (3), H. 25. 

3 Pari. Reg. VH. (2), 190. » Hans. (3), HI. 937. 

i Hans. (1), XXVn. 178. lo Hans. (3). XXXIV. 268. 

6 Hans. (1), XXXVI. 1183. " Hans. (3), XLIII. 360. 

• Hans. (2), X. 72; Same, (3), LXIX. 670. 1= Hans. (3), LXXVI. 1568. 

56 



662 LEGISLATIVE ASSEMBLIES. [PaET VI. 

1712. The rule above stated admits of an exception in regard to 
matters, which appear on the votes of the commons, after they have 
been communicated to the lords, or on the journals of the lords, after 
they have been communicated to the commons, and have accordingly 
become matters of history : thus, where a member in the debate on 
a motion respecting the omission of the queen's name from- the 
litm-gy, was interrupted on the ground that it was irregular to 
remark on the motives which had influenced members of the other 
house of parliament, the speaker, JMr. JNIamiers Sutton, said, " that 
the distinction, as to the remarks made upon the other house of 
parliament, was this : — At the end of every session, the jom-nals 
of the house of lords were communicated to the house of commons, 
as the votes of the commons were regularly communicated to the 
lords. As soon as the jom-nals of the lords were so communicated, 
they became matter of historical record, and whatever appeared 
upon the face of them could be remarked upon." ^ 

1713. In regard to referring to or discussing measures pending 
in the other house, though it is not in order to go into the details, 
as, for example, to advert to and discuss the clauses of a biU ; ^ yet, 
where the measure is of a public character, the subject of it may be 
aRuded to and discussed, in comiection with the intentions, real 
and supposed, of the government, as to such a measm-e ; ^ nor is it 
irregular, in the house which passes a bill, or agrees to some 
measure, which is sent to the other for concurrence, to inform that 
house, that the bill or measure in question has received the unani- 
mous approbation of the house from which it is sent, by inserting 
the words nemine contradicente or nemine disentiente, in the indorse- 
ment authenticating it ; '^ and it is not irregular, in the house sending 
a biU or other measure, to remind the house to which it is sent,^ 
that it is pending in that house. 

1714. It is considered, and with reason, so important, that each 
branch of the legislature should act ^\'ith entire independence, that 
it is regarded as irregular and disorderly, to attempt to promote or 
oppose any measure, by stating the proceedings in reference to the 
same or a similar measure, in the other branch ; as, for example, to 
say, that " if the gentieman, who made the motion, had been 
informed of what had passed in the house of lords the preceding 
day, he never ^vould have made that motion, as he knew no biH 

1 Hans. (2), IV. 213. 5 j. of H. 23d Cong. 2d Sess. 530; J. of S 

2 Hans. (2), X. 72; Same, (3), LXIX. 670. 23d Cong. 2d Sess. 239; Eeg. of Deb. XI 
8 Hans. (3), XV. 882, 885. Part 2, 1662. 

* Piirl. Ees;. XV. 238. 



Chap. VIII] harmony among the branches. 663 

could pass without the lords ; " ^ that " he should bring in just such 
another bill with the amendments, and then gentlemen who meant 
to oppose it should recollect, that it had passed that house without 
even a division, and that it had passed the house of loids without 
any, or with very little opposition;"- or, to speak of the large 
majority by which this bill had been carried, in the other house of 
parliament.'^ 

1715. III. It is also highly irregular to introduce the name of the 
sovereign in debate, for the purpose of influencing the determina- 
tion of the house, for two reasons, . first, because the sovereign 
cannot be supposed to have a private opinion, apart from and inde- 
pendent of the responsible advisers of the crown, and therefore the 
private opinion of the sovereign is of no more account than that 
of any other individual ; and, secondly, because the sovereign, acting 
under and with the advice of the constitutional and responsible 
advisers of the crown, cannot participate m any such manner in the 
functions of legislation. 

1716. The legislative power of the sovereign is defined with 
admirable force and clearness in the remonstrance of the lords and 
commons addressed to Charles I. 16th December, 1641, in w hich 
they declare : — " That it is their ancient and undoubted right that 
your majesty ought not to take notice of any matter in agitation 
and debate, in either of the houses of parliament, but by their infor- 
mation or agreement; and that your majesty ought not to pro- 
pound any condition, provision, or limitation, to any bill or act in 
debate or preparation in either house of parliament, or to manifest 
or declare your consent or dissent, approbation or dislike, of the 
same, before it be presented to your majesty in due com'se of par- 
liament ; and that every particular member of either house hath free 
liberty of speech to propound or debate any matter, according to 
the order and course of parliament; and that yom* majesty ought 
not to conceive displeasure against any man for such opinions and 
propositions as shall be in such debate ; it belonging to the several 
houses of parliament respectively to judge and determine such 
en-ors and offences, which, in words or actions, shall be committed 
by any of their members, in the handling or debating any matters 
there depending." * 

1717. In accordance with the constitutional doctrine here laid 
down, the commons, on the 17th Dec. 1783, resolved : — " That it 

1 Cav. Deb. I. 448. a Hans. (3), XLUI. 360. 

« Hans, (1), II. 1087. * Hans. P. H. H. 978. 



664 LEGISLATIVE ASSEMBLIES. [PaRT V 1.- 

is now necessary to declare, that to report any opinion or pretended 
opinion of iiis majesty, upon any bill or other proceeding depending 
in either house of parliament, with a view to influence the votes of 
the members, is a high crime and misdemeanor, derogatory to the 
honor of the crown, a breach of the fundamental privileges of par- 
liament, and subversive of the constitution of this country," 

1718. It is, therefore, an established rule, which is strictly 
adhered to, in spirit as well as in letter, in both branches, that no 
member shall introduce any mention of the name of the sovereign, 
in debate, in such a manner as to interfere with -the freedom of 
debate, or for the purpose of influencing the determination of the 
house, or the votes of the members, in reference to any matter pend- 
ing in parliament.^ 

1719. The rule, however, is not to be construed so strictly as to 
exclude the statement of a fact, in "^^hich the name of the sovereign 
may be concerned, provided the fact is one, which is proper to be 
communicated to the house, and which the member is authorized 
to communicate. The following instances, in which the name of 
the sovereign was allowed to be introduced, will serve to explain 
the limitation of the rule as above stated. In the debate, February 
24th, 1729, on the foreign loan bill, the purpose of which was to 
prevent loans to foreign princes, — the commitment of the biQ 
being opposed, — Sir Robert Walpole stated, "that he had the 
king's leave to declare, that there ^^as at this time a subscription 
on foot, for the service of the emperor, and money was raising for 
his use, and that the view of the bill was to prohibit such loans and 
assistance to that potentate." When he sat down, IVIr. Wortley 
Montague complained that the minister had introduced the name 
of the king to " overbear their debates ; " whereupon, Sn Robert 
Walpole explained, " that he had not brought in the name of the 
king to influence gentlemen or to overbear the debates ; that as a 
privy-councillor he was sworn to keep the king's council secret, and 
that he had therefore asked his majesty's permission to state what 
he knew, but which, without his leave, he could not have divulged ; 
that he had mentioned the positive assurances, which were received 
not as a message from the king, but by his majesty's leave, — not 
by his command, but only by his permission." And thus the mat- 
ter appears to have ended, upon the explanation given by the 



» Comm. Deb. Vn. 58; Pari. Reg. XIII. 414, 415; Same, XVL 112; Hans. (2), II. 278; 
Same, XIIL 208, 209; Same, XYIL. 1030. 



Chap. .VIIL] harmony among the branches. 665 

minister, without any opinion being expressed by the speaker, or by 
the house.^ 

1720. On the 9th May, 1843, Su- Robert Peel said, " On the 
part of her majesty, I am authorized to repeat the declaration made 
by king WiUiam," in a speech from the throne, in reference to the 
legislative union between Great Britain and Ireland. These 
expressions being objected to, the speaker (Mr. Shaw Lefevre) gave 
his own opinion : " That there was nothing inconsistent wath the 
practice of the house, in using the name of the sovereign, in the 
manner in which the right honorable baronet had used it. It was 
quite true, that it would be Mghly out of order to use the name of 
the sovereign in that house, so as to endeavor to influence its 
decision, or that of any of its members, upon any question under 
its consideration ; but he apprehended that no expression, which 
had fallen from the right honorable gentleman, could be supposed 
to bear such a construction." And lord John Russell explained, 
" that the declaration of the sovereign w^as made by the right honor- 
able baronet's advice, because any personal act or declaration of 
the sovereign ought not to be introduced into that place ; " to which 
Sir Robert Peel added, " that he had merely confirmed on the part 
of her majesty, by the advice of the government, the declaration 
made by the former sovereign." ^ 

1721.' The rule admits of an exception, where the subject under 
consideration has direct reference to the sovereign in his public 
capacity, from the necessity of the case ; as, for example, in the 
debate, July 6, 1820, on a motion for referring the papers relating 
to the queen to a secret committee. In this debate, a member 
having said, " That the queen's opponent was the king; he, who 

^ May, 253; Comm. Deb. VTI. 58. of the executive in the business of legislation, 
2 May, 253, 254. It seems hardly necessary the debates on the president's protest; Reg. 
to observe, that what is said in the foregoing of Deb. X. Part 1, 12, 28, 485, 525, 1317 ; Part 
chapter concerning the sovereign, is appli- 2, 1406, 1421, 1432, 1450, 1434; Cong. Globe, 
cable in this country to the executive branches XI. 973; and on Mr. Benton's expunging 
of our several governments. See, concerning resolution, J. of S. 23d Cong. 2d Sess. 200; 
the harmony which ought to exist between Same, 24th Cong. 2d Sess. 83, 111, 123, 124; 
the two houses, Lloyd's Deb. 1.290; Cong. Reg. of Deb. XI. Part 1, 510; Same, 414. 
Globe, VI. 203: concerning allusions in one The authority of the executive branch in this 
branch to what is said or done in the other, country, to interfere in matters of legislation, 
Reg. of Deb. IV. Part 1, 669, 670; Same, XII. depends, in part, upon custom or usage, but 
Part 1, 414; J. of S. V. 92; J. of H. 19th Cong, chiefly upon constitutional provisions. It is 
1st Sess. 374; Reg. of Deb. VII. 372; Same, IX. confined, for the most part, to the statement 
Part 2, 1759; Same, XI. Part 1, 1234: Same, of facts, and the presentation of papers, before 
Part 2, 1657; Same, XII. Part 2, 2264; con- any act of legislation, and the approval or dis- 
cerning reflections upon the executive, J. of approval of bills. 
H. V I. 445 : and concerning the interference 

56* 



666 LEGISLATIVE ASSEMBLIES. [PaRT VI. 

was, not absolute master of their lives and property, but the grand 
source of distinction and honor, and often of property; who had 
a direct and positive influence where her majesty was to be tried; 
who held the means of reward, titles, orders, and ribbons ; " and 
being called to order, the speaker (Mr. Manners Sutton) said — 
" He felt this to be a very difficult question. It was evident it 
was impossible, on this occasion, to exclude what was excluded on 
every other occasion. But where the introduction was necessary, 
still greater caution ought to be used. It was highly improper to 
impute direct influence to the king in either house of parhament, 
but he was aware that the same thing could be conveyed by put- 
ting it hypotheticaUy." ^ 

1722. Another exception to the rule occurs, where the measure 
under consideration is one, in which the crown has a distmct inter- 
est ; as, in grants of money in certain cases, and in bills relating 
to the royal prerogatives, the hereditary revenues, or the personal 
property or interests of the crown ; in reference to which it is 
necessary, at some stage of the proceedings, to have the consent or 
recommendation of the sovereign ; which is signified verbally 
through some one of the ministers, who is also a member of the 
house.2 



CHAPTER NINTH. 

OF THE EULES RELATING TO REGULARITY OF PROCEEDING. 

1723. I. The first rule, to be mentioned under this head, is, that 
no member, in speaking, is to refer to any thing said or done, in a 
previous debate, during the same session.^ One reason of this rule, 
is, that it is a wholesome restraint upon members, to prevent them 
firom renewing a debate which has already been brought to a close, 
and which might otherwise be interminable ; and there would be 

1 Hans. (2), II. 278. with or -without a question, it cannot be re- 

2 May, 335. ferred to, May, 249 ; Comm. Deb. XL 376, 

3 Mr. May says, — "on a question already 377; Pari. Reg. XLIV. 206, 207; Hans. (2), 
decided by the house," — but this cannot be XIIL 129, 130; Same, (3), XL. 829; Same, 
strictly true in any other sense than that if LIII. 473; Same, LXXVIII. 137, 138; Same, 
the debate has beeii brought to a close in any XXVH. 121, 122; Same, XIH. 1408; Reg. of 
manner, either temporarily or finally, either Deb. XII. Part 1, 414. 



Chap. IX.] regularity of proceeding. 667 

little use in the rule prohibiting the same question or mfltter from 
being brought forward a second time, in the same session, after 
having once been decided, if, without being moved, its merits might 
be discussed again and again.^ Another reason for it is found- 
ed in the good-sense and justice, which prohibit aU explanation 
of words uttered in debate, unless an explanation is demanded at 
the time, so that the member, whose words are complained of, may 
have an opportunity to retract them, or to explain their real mean- 
ing, while the words themselves and the circumstances attending 
the speaking of them are still fresh in his recollection and in th,e 
minds of the house.^ 

1724. In the application of this rule, it is immaterial whether 
there is a question pending or not,^ or whether the member, whose 
words are referred to, is present or absent,'* at the time the refer- 
ence takes place, or whether the speaking of the words referred to 
was in a debate, strictly so called, or on some less formal occasion, 
as, for example, in giving an answer to a question ; nor is it ma- 
terial for what purpose the reference is made, whether for that of 
explaining,'* or of demanding an explanation,*" or for the purpose of 
commenting upon," or of answering or replying to,'^ arguments used 
on a former occasion; but it is an aggravation of the irregularity 
to refer to or quote the words of a former debate, as published in 
a newspaper.^ 

1725. K the occasion, on which the reference is made, is not a 
continuation of that, on which the words referred to were used, as, 
for example, where a debate is adjourned, the latter must be con- 
sidered as a previous debate, within the meaning of the rule ; so, 
every succeeding stage of a bill, or other matter, presenting as it 
does a new and different question, gives occasion to a new debate. 

1726. In regard to the particular words or expressions made 
use of on a former occasion, the rule seems to be strictly en- 
forced, aU reference thereto being considered disorderly ; ^^ but, 
in respect to the subject-matter of a debate, it is the practice of the 
house to allow great latitude ; the speaker not deeming it liis duty 
to watch strictly every violation of the letter of the rule, but leav- 

1 Miiy, 249. ' Hans. (3), LIII. 473. 

a Pari. Reg. X. 160. s Parf. Reg. LIX. 131; Same, LXII. 146; 

8 Hans. (1), XXXIV. 1260. Hans. (2), VIH. 574. 

4 Hans. (2), XIII. 129, 130. 9 Hans. (3), LHI. 473; Same, LXXVIH. 137, 

B Hans. (1), XXXIV. 1260. 138. 

« Hans. (2), XHI. 1408; Pari. Reg. XVII. ^ Hans. (2), XIII. 129, 130; Same, (3), XL. 

382; Same, LII. 47; Hans. (1), XXXIV. 1260; 829; Same, XXVII. 121,122 
Bame,(3), XXXVII. 1323; Same, 1328. 



668 LEGISLATIVE ASSEMBLIES. [PaET VI. 

ing the matter to be regulated by the general sense of the house, 
and taking from them the hint how far the rule may be relaxed in 
each particular case.^ It would, however, be considered disorderly, 
to go into a formal reply to arguments used on a former occasion, 
in reference to another subject,^ or to reply directly, in one stage of 
a bill, to the observations of another member, made in a former 
stage ; ^ though in such cases, it is undoubtedly competent to go 
into arguments on the general measure.* 

1727. It is, of course, within the discretion of the house, in ref- 
erence to this rule, as well as to others, to make particular excep- 
tions on such occasions as they think proper. An indulgence of 
this kind is usual, it seems, " where a member has a personal com- 
plaint to make; "5 and, on one occasion, the speaker (]Mr. Man- 
ners Sutton) said : " It was most certainly irregular to refer to a 
former debate ; but, as he had not interfered in the allusion of 
one honorable member, which was irregular when it was made, he 
was at a loss to see how he could now interfere, to prevent another 
honorable member, -who conceived himself alluded to in his ab- 
sence, from giving that explanation respecting himself, which he 
deemed relevant." ^ 

1728. The rule also admits of an exception, not from the in- 
dulgence of the house, but of right, where the words adverted to 
are themselves the subject of a new and independent motion,' or 
constitute the reason upon which such a motion is founded.^ 

1729. II. A second rule, belonging to the class now under con- 
sideration, relates to the proceedings of committees (other than 
committees of the whole) ; which cannot, in general, be attended 
to, or introduced, in debate, until regularly brought before the 
house, by the report of the committee, or in some other parlia- 
mentary way.^ 

1730. While a comiTiittee is in being, and in the discharge of 
its functions, all incidental reference to it, or its proceedings, is dis- 
orderly ; as, where a member in debate said that " it Tvas painful 
to any person attending the Carlow committee now sitting, to wit- 
ness the interminable disputes as to residence ; " and, being called 
to order, the speaker (Mr. Shaw Lefevre) said that " no honorable 

1 Hans. (2), XIIL 129, 130. '' Pari. Reg. LIX. 131. 

2 Pari. Reg. LIX. 131; Same, LXH. 146; » Hans. (3), VIL 387. 

Hans. (1), XIX. 723, 724, 725. ^ It is not in order to refer in the house to 

* Hans. (2), VIII. 574. arguments used in the committee of the 

* Hans. (2), VIII. 574. whole, or vice versa, Cong. Globe, V. 144; 
B Hans. (3), LIX. 485; May, 249. Same, XIV. 372. 

* Hans. (2), VI. 944. 



Chap. IX.] regularity of proceeding. 669 

member was at liberty to refer to the proceedings of an election 
committee, before it had reported to the house : " ^ so, when a 
member, in debate, attempted to state what had taken place in a 
committee, " a difficulty having arisen, in consequence of an 
honorable member having asked to be admitted," and was called to 
order, on the ground, " that no member had any right to state what 
had occurred before a committee, until that committee had made 
its report," the speaker confirmed the doctrine as thus laid down.^ 

1731. Where, however, a miotion is made, relative to the com- 
mittee itself, or its proceedings, the rule admits of an exception; 
thus, where a committee on a private bUl had brought its pro- 
ceedings and its existence to a close, before making a report, by 
an adjom-nment without day, and a motion was made, that the 
committee be revived and proceed with the business referred to it, 
a discussion ensued as to the extent to which the proceedings of 
the committee could regularly be stated or introduced as a ground 
for the motion, in which the speaker (Mr. Manners Sutton) said, 
" it was difficult to lay down a strict rule, as to the statements 
which might be made of transactions in a committee," but that if it 
was necessary to read from or introduce the minutes of their pro- 
ceedings, " the regular course was first to move the house, that the 
minutes be produced ; " and it was agreed, that every member who 
had attended an open committee might state in his place what had 
occurred there, and that what had occurred in the committee might 
be stated, to lay a ground for the production of the minutes, 
though the minutes themselves could not be read until regularly 
before the house.'^ 

1732. When the report of a committee has been made, it is 
irregular, even though the report itself is under consideration, to 
allude to or introduce the committee or their proceedings in debate, 
except so far as they appear in the report itself, unless there is a 
motion made, or to be made, that the report be recommitted : the 
report of the committee appointed to inquire into the state of the 
impeachment against Governor Hastings having been brought up 
and read, and a motion made thereupon, one of the members of 
the committee proceeded to make some remarks upon the commit- 
tee and its proceedings, but the speaker (Mr. Addington) called 
him to order, and informed him, " that he cotdd not regularly state 
to the house any thing upon the subject of the report, that waa 

1 Hans. (3), XLVHl. 993. » Hans. (2), X. 10, 11. 

2 Hans. (3), LXIV. 737. 



670 LEGISLATIVE ASSEMBLIES. [PjVET VL 

not in the report itself, unless he intended to move for its recom- 
mitment." 1 

1733. But where there is a motion to recommit a report, as 
above stated, or where a motion is made relative to the proceed- 
in'gs of a committee, after it has reported, statements may then be 
made, and matters introduced, extrinsic to the report : thus, where 
a member, having given notice of a motion to call the attention of 
the house to the proceedings of a select committee which had made 
its report, was proceeding to read a question put by a member of 
the committee (the member himself speaking) which had been ex- 
punged by a vote of the committee, and was called to order, the 
speaker (Mr. Shaw Lefevre) said: " If he understood the question 
rightly, it was, whether the honorable member could read that part 
of the examination taken before the committee which 'was ex- 
punged, and therefore did not make a part of the, report. That 
course might certainly be an inconvenient one, but he was bound 
to say, that he thought the honorable member quite in order in 
adopting it." ^ 

1734. Where a committee makes a report upon some incidental 
matter or question, the same rules apply; and nothing can be 
stated with reference to the report so made, but what appears in 
the report itself, although included in the other proceedings of the 
committee : thus, where an election committee had reported on 'the 
case of a witness, for refusing to give evidence before the commit- 
tee, and a motion was made, that the witness be brought to the 
bar, to be interrogated by the speaker, as to whether he would per- 
sist in refusing, etc., a member of the committee was proceeding to 
make a statement of what had transpired before the committee, but 
was called to order by the speaker, " who reminded him, that the 
committee had not yet made its report ; and that it was contrary 
to the rules of the house for the proceedings of a committee to be 
referred to, until its report had been laid upon the table ; " ^ qq, in 
the debate, on the case of a witness, for refusing to obey the speak- 
er's warrant, to produce certain papers before an election commit- 
tee, a member of the committee was not allowed to mention the 
kind of documents respecting which the summons of the speaker 
was supposed to have been disobeyed, or the situation in which 
the committee stood, on the occasion of a vote, on the ground, 

» Pari. Reg. XXXV. 592. » Hans. (3), LXU. 1056. 

a Hans. (3), LV. 602. 



Chap. X.] respect due from the members. 671 

that no such reference or statement could be made, until the com- 
mittee had reported.^ 

1735. III. A third rule, relating to regularity of proceeding, is 
that which prohibits all remarks, in debate, tending to prejudice the 
minds of members on the subject of a controverted election, which is 
already before the house, or expected to come before it ; even though 
the remarks may be in themselves relevant to the question in refer- 
ence to which they are made, as, for example, where the motion is 
for an exchange of lists of contested votes.^ 



CHAPTER TENTH. 

OF THE EULES RELATING TO THE RESPECT DUE FROM THE 
MEMBERS TO THE HOUSE TO WHICH THEY BELONG, — TO ITS 
POWERS, ACTS, AND PROCEEDINGS, — AND TO THE GOVERNMENT 
AND LAWS OF THE COUNTRY. 

1736. The offences against order in debate, which are the sub- 
jects of the rules embraced in this chapter, not only imply a great 
want of respect in the persons by whom they are committed, 
towards the body of which they are members, and are therefore 
virtual if not actual contempts, but they are also calculated to de- 
grade the legislature and its members, and the existing institu- 
tions of the country, in the estimation of the people. They are 
never necessary, for the most radical reform, in the power of the 
legislature, can be effected without resorting to such means ; they 
tend as strongly as words of heat and anger towards individual 
members to produce altercation and recrimination ; and they should 
be as promptly suppressed as any offences whatever against the 
peace, dignity, and harmony of the legislature. 

1737. I. All reflections on the house itself, as a political institu- 
tion, or as a branch of the government, are disorderly ; ^ as, for a 

1 Hans. (3), LXII. 1179, 1180. See, as to 253; or to make comments upon it, if the 

allusion to proceedings of committee not re- chairman has alluded to it in the way of 

ported on, .J. of H. 31st Con<:;. 1st Sess. 393; explanation ; and generally, Cong. Globe, VIII. 

Reg. of Deb. IV. Part 2, 1830; Cong. Globe, 209, 210. 

XXI. 214, 215; to show that report was irreg- 2 Hans. (1), XXIV. 844; Same, (3), VII. 

nlar, Reg, of Deb. XI. Part 2, 1435; or on a 377. 

motion to recommit it, Cong Globe, III. 249, ^ Parl. Reg. XV. 302. 



672 LEGISLATIVE ASSEMBLIES. [PaET VL 

member of the house of commons to speak of the house of lords, 
as " the superior house of parliament," ^ or of the house of com- 
mons, as " the inferior branch of the legislature," ^ or as " not now 
the commons of England in parliament assembled," ^ or as " falsely- 
denominating itself the commons house of parliament ; " ^ or to say 
of the house of commons, " he greatly feared, that, in reputation, 
that house had not a leg to stand upon." ^ 

1738. It is also an offence against the house itself, for a member 
to use any profane, obscene, or indecent language, such as is unfit 
for the house to hear, or for any member to utter, although not 
directed against or reflecting upon the house itself, or any of its 
members.^ 

1739. 11. It is also disorderly, in debate, to question any of the 
acknowledged and indubitable powers of the house, as, for example, 
its power to commit in cases of breach of privilege.'' This prin- 
ciple, though established with particular reference to the power of 
commitment, is equally applicable to any of the other acknowl- 
edged powers of the house. 

1740. III. It is irregular to reflect upon, argue against, or in any 
manner call in question, in debate, the past acts or proceedings of 

*the house, on the obvious ground, that, besides tending to revive 
discussion upon questions which have been already once decided, 
such reflections are uncourteous to the house, and irregular in prin- 
ciple, inasmuch as the member is himself included in and bound 
by a vote agreed to by a majority ; ^ and it seems, that reflecting 
upon, or questioning the acts of the " majority " is equivalent to 
reflecting .upon the house.^ 

1741. The following are examples of irregularity, in reflecting 
upon or questioning the acts and proceedings of the house, namely, 
where one member excused another under the condemnation of the 
house ; ^'^ where, on an order having been made for the attendance 
of Mr. Wilkes, at the bar, after he had been expelled the house, a 
member said, that in his opinion. Mi*. Wilkes ought to atjtend in 
his place ;^^ where a member said he intended to argue against a 
resolution of the house, passed during the session ; ^^ where a mem- 



» Pari. Keg. (2), XIL 397. » Hatsell, XL 234; Maj-, 250, note. 

* Hans. (1), XVI. 15. 9 Comm. Deb. VIII. 32, 33; Pari. Reg. XXI. 
8 Hans. (1), XV. 338, 339. 357. 

* Hans. (1), XXXV. 317. w Grey, IH. 248. 

6 Hans. (1), XV. 338, 339. " Pari. Deb. VL 103. 

» Hans. (3), XVI. 217. " Cav. Deb. L 371. 
1 Hans. (2), IV. 1168. 



Chap. X.'J respect due from the members. 673 

ber said, that though such a proceeding might be consistent with 
order, he was sure it would be considered by the country as dis- 
graceful and contemptible ; ^ where a member said, that " if a com- 
mittee was appointed, he wished it to consist, not of party m.enj 
as on the late occasion, but of proper people," the speaker deeming 
this language equivalent to speaking of committees appointed by 
the house, as if they were the nomination of an individual ;2 saying 
that a motion in the house is refused by power.^ In the house of 
representatives of the United States, it has been decided, that it is 
irregular in a member to charge a portion of the house " with an 
endeavor to drive through a bill at all hazards, and without due 
consideration," * or with a design to " defeat a bOl by indirection ;" ^''• 
or to say that " the people should know the flagrant violation of 
their rights that had been committed by the house." ^ 

1742. IV. It seems from the following decision of Mr. Speakei 
Abbott, that there are cases, in which a member may be disorderly, 
by uttering reproaches against the existing government, for the pur- 
pose of bringing it into disesteem. A member saying, in debate, 
that a fact had come to his knowledge of a bill accepted by govern- 
ment having been dishonored, and being caUed to order, for making 
an observation which tended to discredit the government, the 
speaker said, " He would deliver his opinion on the subject, which 
the house would support and confirm, if right ; if wrong, of course, 
it would be discountenanced. His opinion was, that if a member 
of that house cast any reproach on the existing government of the 
country, under the general charge of insolvency, or otherwise, to 
excite disesteem towards it, he was disorderly. That was his judg- 
ment, and whether it was correct or erroneous, the house would 
judge." "> 

1743. V. It is, lastly, irregular and disorderly to speak in dis- 
respectful or abusive terms of an act of parliament, — especially if 
it is one which is political in its character, — such remarks imputing 
discredit to the legislature, by which the act was passed, and hav- 
ing a tendency moreover to bring the institutions and laws of the 
country into contempt. It is, consequently, disorderly to say of any 
existing laws, that they ought to be forcibly resisted ; ^ or to 
describe certain laws as " tyrannical and diabolical ; " ^ or to say of 

1 Hans. (1), II. 695. s Re^. of Deb. X. Part 4, 4274. 

a Hans. (1), IV. 738. J Pari. Reg. LXII. 124. 

» Comm. Deb. VIII. 201. « Pari. Reg. XLV. 83. 

* Reg. of Deb. X. Part 3, 3760. » Pari. Reg. XLVH. 721. 



» Reg. of Deb. X. Part 3, 3765. 



57 



674 LEGISLATIVE ASSEMBLIES. [PaRT VI. 

the laws enacted by parliament, that the inhabitants of Ireland were 
not bound by them.^ 

1744. The preceding rules relate only to remarks made, or lan- 
guage used, incidentally, in the course of debate, respecting the 
house, or its powers, acts, or proceedings, or the government or 
laws of the country ; but they do not prohibit the introduction of 
any or all of these topics, and their orderly discussion, upon perti- 
nent and proper questions regularly moved ; thus, the constitution 
of the house of commons may be discussed on a question of par- 
liamentary reform ; the power of the house to commit may be 
submitted as a question by itself;''^ the acts and proceedings of the 
house may be argued against upon a motion to rescind them ; ^ the 
administration of the government may be called in question upon 
a proper occasion ; and, nothing is more common than to speak in 
terms of the utmost severity and freedom of statutes, upon the 
question of then* repeal or modification. In all these cases, how- 
ever, the language used should be temperate, decorous, and respect- 
ful ; not falling below the importance of the subject, on the one 
hand; nor, on the other, exceeding the just limits of orderly 
debate. 

1745. The principle, stated in the preceding paragraph, applies 
equally to bills and other measures, which have not yet passed, 
and which may be commented upon with equal severity and free- 
dom. The following language, which was uttered in congress in 
January, 1811, has probably been since many times repeated. A 
bill " to enable the people of the territory of Orleans to form a con- 
stitution, and State government, and for the admission of such 
State into the Union, on an equal footing with the original States, 
and for other purposes," being under consideration in the house of 
representatives of the United States, Mr. Quincy, one of the mem- 
bers from Massachusetts, Tvas called to order for using, in debate, 
the following expressions : — " K this biU passes, it is my deliberate 
opinion, that it is, virtually, a dissolution of this Union, that it wiU 
free the States from their moral obligations ; and that, as it will 
then be the right of all, so it will be the duty of some, definitely to 
prepare for separation, amicably if they can, violently, if they must." 
The speaker decided that the above language from the semicolon 
to the end was out of order, but on appeal to the house, his 
decision was reversed.* 



1 Hans. (1), XXXV. 369. » Grey, HI. 248. 

* Hans. (2), IV. 1168. * J. of H. VU. 481 



CbaP. XL] DISORDERLY WORDS. 675 



CHAPTER ELEVENTH. 

OF PROCEEDINGS WITH REFERENCE TO DISORDERLY OR UNPAR- 
LIAMENTARY WORDS, OR IRREGULARITY IN DEBATE. 

1746. Exception may be taken to a member speaking, or pro- 
ceeding with his speech, in debate, for two pxixposes, first, to prevent 
him from committing a breach of order ; or, secondly, to correct a 
breach of order when committed. Exception may also be taken to 
the language used by a member in debate, either for the purpose of 
requiring the words which give offence to be explained, retracted, or 
apologized for, or for the purpose of censure or punishment of the 
member using them. Proceedings against a member, for the pur- 
pose of censure or punishment for the use of disorderly words, 
belong to another part of this treatise. The other topics above indi- 
cated are now to be treated of in connection with the subject of 
order in debate. 



Section I. Of Proceedings to prevent or correct Irregu 
LARiTY IN Debate. 

1747. The duty, which devolves upon the speaker, as the servant 
of the house,! ^q \;q^q care that all decency and order shall be 
observed,^ is one of the first in importance of his official duties ; ^ 
which, however difficult,* irksome,^ painful,*^ a id embarrassing,'' the 
performance of it may be, is nevertheless essential to preserve the 
dignity of the house,^ to secure the equal rights of all parties and 
members,^ and to facilitate the business of the house.^^ 

1748. In the performance of this duty, while the speaker will 
bear in mind on the one hand the difficulties which he would be 
obfiged to encounter, if he should feel bound to interfere, on every 



1 Cav. Deb. IT. 315. « Hans. (3), XXXIV. 532; Same, (2), VL 

2 By Mr. Speaker Onslow. Comm. Deb. 69, 70. 

VTI. 267. 1 Pari. Reg. XLIV. 206, 207. 

3 Hans. '2), VI. 69, 70. » Comm. Deb. XII. 299; Hans. (2), VI. 69, 
* Hans. (2), VL 944. 70. 

» Pari. Reg. XXV. 309, 311. 9 Hans. (2), VL 69, 70. 

» Pari. Reg. XV. 302. 



676 LEGISLATIVE ASSEMBLIES. [PaET VI. 

trifling deviation fi:om order that might take place,^ and the incon- 
veniences that would result to the progi'ess of the business of the 
house, if he should watch strictly for every violation of the letter of 
its orders,^ and mil therefore regard rather the convenience of the 
house, than the strictness of order, in matters of doubt,-^ or of tri- 
fling importance ; '^ he will not be unmindful, on the other hand, 
of the importance of observing the laws and regulations of the 
house, in their substance and spirit, in order to preserve the dignity 
of the house, and to carry on the business of the pubhc, with that 
celerity and regularity, which are absolutely necessary to the due 
performance of legislative dntj.^ 

1749. It is peculiarly the duty of the speaker to interfere in the 
first instance for the preservation of order, when, in his judgment, 
the occasion demands his interference. In such a case, therefore, 
the judgment of the speaker being formed, he at once interferes, 
and enforces the order of the house. But, though the speaker 
should refrain from interfering, either because the occasion is not 
one which, in his judgment, makes it necessary to do so, or be- 
cause he does not so soon perceive the breach of order, or because 
he is wilhng to give a member, who is on the point of trans- 
gi-essing, an opportunity to retrieve himself,*^ it is the right of 
any member, notwithstanding, to rise up and call to order, if, 
in his judgment, the occasion demands the mterference of the 
house. 

1750. "When a member thus calls to order, it is his duty in the 
first place, to state wherein he apprehends the member speaking is 
disorderly ; then the speaker expresses his opinion upon the point 
of order raised, either immediately, or after hearing the question 
spoken to by other members, including the member calling, as 
well as the member called, to order ; and either sustains the call 
to order, or sustains the member in the Hne of remark or course he 
was pursuing, or in the use of the words to which objection was 
made. 

1751. When the speaker is thus called upon to interfere upon 
the point of order, or when he interferes of his own motion, his 
duty only requires him, in the first instance, to state to the house 
what the rule of order is, in reference to the matter in question, 
and to declare, at the same time, whether the member is, or is not in 
order, in the course which he is pm-smng or attempting to pursue, 

1 Hans. (2), VI. 944. * Hans. (3), XXVTL 120. 

2 Hans. (2), XIII. 129, 130. 5 Hans. (3), XXVI. 907. 
s Hans. (2), XHI. 129, 130. 6 Hans. (2), VHI. 410. 



Chap. XL] bisorderly words. 677 

or in using the language complained of as disorderly. The opinion 
of the speaker, when thus declared, is entitled to very great weight,^ 
and is ordinarily received as conclusive ; but it remains, notwith- 
standing, for the house to sanction it by its acquiescence ; ^ and 
unless so sanctioned, it is entitled to no more consideration than 
that of any other member. The speaker, in giving his opinion, 
sometimes adds such expressions as these : that " it is for the house 
to decide whether the member shall go on or desist ;"3 or, that 
" the house will support and confirm his opinion, if right ; if wrong, 
of course it will be discountenanced ; " ■* or, that " this is his 
judgment, and whether it is correct or erroneous, the house will 
judge ; " ^ or, that " whenever he attempts to enforce the order, 
and the house overrules him, (as they undoubtedly have the power 
to do whenever they please,) it is not to be imputed to him as a 
neglect of duty.'"' 

1752. When the speaker's opinion is thus pronounced, it is 
deemed to be acquiesced in, and to make an end of the question, 
as a matter of course, unless something is done to overrule it. 
The speaker cannot be called upon to revise it, nor can it be called 
in question by any member, nor is any member at liberty to argue 
against it ; but if any member doubts its authority or correctness, 
his only course is to take the sense of the house upon it by a ques- 
tion." This is a most uncommon proceeding, of which there are 
but few examples in all the recorded experience of parliament.^ It 
is not, however, by any means extraordinary, for the opinion of the 
speaker to be virtually overruled, — or, perhaps, more properly speak- 
ing, for the rule of the house, as laid down by the speaker, to be 
dispensed vdth for the particular occasion, — by a tacit acquiescence 
of the house in the course of proceeding, which, according to the 
speaker's opinion, is disorderly ; as, for example, where a member, 
being called to order, and adjudged out of order by the speaker,'' is 



1 Pari. Reg. LIX. 256; Same, LX. 3G5, 366. (1), IX. 325, 326, 327. In others, again, a re- 

2 Hans. (1), XXI. 191; Same, VII. 825. mark of the member called to order, in ex- 

3 Hans. (1), XXI. 191. planation or justification, has been received 
* Pari. Reg. LXII. 124. , without objection. Hans. (2), IV. 213; Pari. 
5 Pari. Reg. LXII. 124. * Reg. XXVII. 527, 528; Hans. (3), VIII. 722, 
« Pari. Reg. (2), IX. 65. 723; Same, LIII. 473; Same, (1), XXXV. 369; 
f Hans. (3), LXIII. 424. In some cases, a Hans. (1), XXIV. 1260; Pari. Keg. XXI. 464. 

diflerent proceeding in point of form seems to ^ It is quite common in our legislative as- 

have been allowed, for the purpose of calling semblies, to appeal from the decision of the 

in question the speaker's opinion. Hans. (3), chair, on these as well as other points of 

LII. 1063, 1064, 1065. In others, a remark of order. 

the speaker, before being called upon for his * For speaking second time. 

opinion, has b&jn commented upon. Hans. 

57* 



678 LEGISLATIVE ASSEMBLIES. [PaKT VI. 

nevertheless suffered by the house to proceed as before. If the 
opinion of the speaker is acquiesced in, it then becomes an order 
of the house, to be enforced in the same manner as the other 
orders. 

1753. The speaker, in giving his opinion upon the point of 
order, not unfrequently takes occasion to explain the grounds of it, 
for the instruction of the house, when he thinks the matter of 
sufficient importance ; ^ or to state, for the benefit of the member, 
how far he is in order, and how far not so,'-^ or in what manner he 
may proceed in order ; ^ or to explain, in justification of himself, 
why he had not interfered, or why he had not interfered sooner ; * 
and also to make any suggestions which he may deem useful, 
either to preserve the dignity, or promote the convenience of the 
house.'^ 

1754. The opinion of the speaker either sustains the point of 
order, or the member speaking, or refers the question to the decision 
of the house. In the first case, the member cannot proceed, in the 
com-se so decided to be objectionable, but is entitled to proceed, if 
he pleases, in order ; in the second case, the member is entitled to 
proceed as before ; ^ in the thhd, the member proceeds or not, accord- 
ing to what appears to be the sense of the house."^ 

1755. In sustaining the call to order, according to the strict rule 
of the house, the speaker sometimes suggests the propriety of an 
indulgence to the member, either on account of the particular cir- 
cumstances of the case,s or because indulgence has been usual in 
similar cases,^ as, in a matter of privUege,!*^ or in the case of a per- 
sonal complaint by,!^ or of a personal appeal to a member,!^ q^ of 
the mover of a motion to reply ; ^^ or informs the house, that the 
rule had not been strictly insisted on ; i* or that similar practices had 
grown into general use ; ^^ or that of late a practice had arisen of 

1 Pari. Eeg. LXL 258; Hans. (1), H. 613, « Pari. Eeg. XXV. 309, 311; Hans. (3), XV. 
614; Same, (3), L 1329; Same, (2), IL 25; 882,885. 

Same, (2), IV. 1168; Pari. Reg. XXXV. 592; « Pari. Reg. LXIH. 673, 674; Hans. (1), 
Hans. (3), HL 718. XXXHL 919; Pari. Deb. XXXVUI. 368. 

2 Hans. (1), n. 613, 614. ' Pari. Reg. LXH. 16, 17. 

» Pari. Reg. LXL 258. / Pari. Reg. XX VL 278, 280; Hans. (1), L 

*Hans.(l)', XLI. 814; Same, XV. 218, 219; 801; Same, (3), XXXIL 820; Same, (1), I. 

Pari. Reg. VH. (2), 154; Same, XXV. 309, 814,815; Same, (3), ^^^. 724, 725. 

311; Same, LXHL 788; Hans. (2), IV. 243; » Hans. (2), IV. 1013. 

Same, (3), III. 1194; Same, (2), VIIL 410; w Hans. (3), XX. 6. 

Same, (3), XXVIL 120; Pari. Reg. XLIV. n Hans. (3), LIX. 485. 

206, 207; Hans. (2), XVII. 1030; Pari. Reg. 12 Hans. (1), XXXIL 1221. 

LVL 337; Hans. (2), VI. 944; Same, (1), IV. i^ Parl. Reg. XII. 127; Same, XXXH. 93, 94. 

177. " Hans. (2), IV. 922, 923. 

13 Hans. (3), IV. 1251. 



Chap. XL] disorderly words. 679 

deviating from the rule ; ^ or that a rigid adherence to the rule was 
sometimes not requked ; ^ or that it had become the common prac- 
tice of the house to disregard the rule ; ^ or, that, one member 
having been indulged, the like indulgence should be extended to 
another ; ^ or that the house may, if they think proper, dispense 
with the rule in the particular case.^ In cases, where suggestions 
of this sort are made, especially if they express also the wishes or 
opinion of the speaker, they are usually adopted and sanctioned by 
the house, either by a tacit acquiescence in the course suggested, or 
by some informal manifestation of opinion. This, however, is not 
always the case ; the house sometimes sustaining the strict appli- 
cation of the rule, as laid down by the speaker.*^ 

1756. In sustaining the member, the speaker sometimes dis- 
affirms the supposed rule of order, upon which the call is predicated, 
as, for example, where a member was called to order, for mention- 
ing in debate the name of a petitioning candidate ; "• and, some- 
times, the fact alleged as the act of disorder, as, for example, where 
the speaker said he did not understand the words objected to as 
conveying the idea imputed to them, or that they were used in an 
offensive sense.^ Sometimes, also, when allowing a member to 
proceed, he takes occasion to remind him of the terms of the ques- 
tion ; ^ or cautions him as to the extent to which his remarks may 
be allowed.^*^ 

1757. It sometimes happens, that the speaker, instead of express- 
ing his opinion on either side, merely intimates a doubt, whether 
the member can proceed consistently with order ; ^^ or asks instruc- 
tion of the house upon the point suggested ;^^ or refers the question 
to the discretion or feeling of the house ; ^^ or expresses his opinion 
hypotheticaUy, that is, that if the member intended or said some 
particular thing, he was, or was not in order.^^ 

1758. It seems to be an established principle in parliamentary 
practice, that, when a member rises and addresses the house, it is 



1 Hans. (3), LXIir, 512. » Hans. (1), XXXII. 983; Same, XXVm. 

2 Hans. (1), VII. 825. 108; Same, (2), VII. 1394; Same, IV. 240. 

3 Hans. (3), XXVII. 121, 122. 9 Hans. (3), XVIII. 89. 

« Hans. (2), VI. 944. lo Hans. (1), XI. 755; Same, XXXVI. 1183. 

6 Pari. Reg. LXII. 16, 17; Hans. (1), XV. " Hans. (2), XII. 1314, 1315. 

154; Same, XVI. 739; Same, (3), II. 638; 12 Hans. (1), VII. 188, 207, 208. 

Same, XXXII. 820; Same, (1). I. 814. 815. is Hans. (3), XIII. 884; Same, (1), VI. 847; 

8 Pari. Re^;. LXII. 16, 17. Same, (2), IV. 518, 519; Same, Xlll. 129, 130. 

» Hans. (1), VIIL90. » Hans. (3), XXXIL 803; Same, H. 401; 

Same, (2), XIII. 208, 209; Same, (1), X. 700. 



680 LEGISLATIATC ASSEMBLIES. [PaET VL 

to be taken for granted, that he does so for the purpose of doing or 
saying what he has a right, according to the orders of the house, to 
do or say ; ^ thus, where a member was called to order, on the 
ground, that it was not apparent, in what manner the circumstances 
mentioned by him could apply to the question before the house, the 
speaker (]\Ir. IManners Sutton) said, "that he took it for granted, 
that the honorable member would bring his observations to bear 
upon the motion before the house, and that he meant to make some 
proposition for the consideration of the house ; " ^ so, on a like 
occasion, ]Mr. Speaker Abbott said, " he conceived that the honor- 
able member's observations were not strictly applicable to the 
motion ; but he was always dehcate in interfering upon such occa- 
sions, as it was difficult to know, whether an honorable member 
might not conclude with something that would bring him within 
order; " ^ so, on another occasion, when a member was taken down 
to order, the speaker said, " he ought to go on, for probably what 
he said, he may explain, before he ends his discourse ; " ^ so, where, 
the speaker having risen, a member rose, and was called to order, 
for. rising after the chair had risen, the speaker said, " It is true that 
I rose, and I did so for the purpose of stating that when the honor- 
able and learned member for Dublin was about restating his argu- 
ment, he was doing that which was inconsistent with an explanation. 
The honorable member for Kilkenny rose, I suppose, for the purpose 
of sho^ving that the honorable and learned member was in order ; 
for otheri:\ise he had no right to rise." ° 

1759. But, when it is apparent, that what a member proposes to 
do cannot be done consistently wdth order, it is then competent to 
the speaker or any member to interfere and object to his proceed- 
ing : thus, ^ivhere a member having addressed the house, when there 
was no question pending, concluded his speech without a motion, 
and another member thereupon rose to reply, the speaker (Mr. 
Abbott) interfered and prevented him from doing so, on the gromid, 
that, without the authority of the house, it would be iiTegular in 
him to permit any discussion, when there was no question before 
it ; ^ so, ^^here a member, having been called to order for addressing 
the house, ■^^hen there w^as no question before it, without hinting 
his intention to conclude with a motion, rose again, — saying that 
he did not intend to submit any motion, — he was again called to 

1 See Pari. Reg. LIX. 338. * Grey, IV. 128. 

2 Hans. (3), LIX. 1006. = Hans. (3), XXXIX. 701. 

3 Pari. Keg. LXIH. 788. e Pari. Beg. LXH. 16, 17. 



Chap. XL] disorderly words. 681 

order, and prevented from proceeding ; ^ so, where a member, in the 
course of a speech, proposed to read a letter, the subject of which 
he stated, he was informed by the speaker that he could not do so 
consistently with order.^ 

1760. In like manner, if it is apparent, from what a member is 
saying, or has aheady said, that if he goes on he will commit a 
breach of order, he may be interrupted and prevented from proceed- 
ing ; ^ thus, where a member, in the course of his speech, said, that 
another member " was reported to have said, the other evening, and 
he believed did say," the speaker (Mr. Shaw Lefevre) rose to 
order, and said " he thought it was his duty to interfere, on this 
occasion, because he was sure that if the honorable gentleman went 
on, he would transgress one of the rules of the house." * 

1761. When., however, it is not apparent, but only highly prob- 
able, from what a member proposes, or from what he has said, or 
is saying, that if he proceeds, he will be guilty of a breach of order, 
it is then for the discretion of the speaker and of the house to de- 
cide, from the tone and manner of the person speaking, and the 
circumstances of the case, as well as the words used, whether to 
interrupt the member, or to allow him to proceed. If, in such a 
case, it were the purpose of the member to say what would be a 
breach of order, the interruption would be proper ; if otherwise, 
then the strong probability, from the circumstances, that he would 
have done so, had he not been interrupted, would be a sufficient 
justification for the interruption ; and the interruption itself would 
be a salutary admonition to him to proceed in order. 

1762. A member, in the course of his speech, having niade use 
of the following language, " for no man living could believe, 
that a prince of the house, which sat on the throne by virtue of the 
revolution of 1688, should promulge to the world that, happen 
what would, when he came to fill another situation, if all — " a 
member here rose to order, " to prevent his honorable and learned 
friend from continuing a course of observation, in his present heat 
of temper, which he was satisfied, he would, in his cooler moments, 
regret." The speaker, Mr. Manners Sutton, thereupon, — first in- 
timating that he had refrained from interfering, because as the 
member speaking had himself correctly defined the order of the 
house on taldng up the subject which had occasioned the present 
interruption, it was his (the speaker's) business to expect that he 

1 Pad. Reg. LXII. 200. See also Hans. (1), 2 Hans. (3), LXI. 141; Same, LXIV. 261. 
VI. 143. « Grey, HI. 120. 

4 Hans. (3), Lll. 318 



682 LEGISLATIVE ASSEMBLIES. [PaRT VL 

would not depart from what he had laid down, — said, " that if the 
inference drawn by the member calling to order was correct, if his 
anticipation of what was coming from the gentleman speaking was 
right, there could be no question, that the latter would be out 
of order, and the further proceeding in the course which he had 
announced would be most disorderly." ^ 

1763. Where a member is called to order, and checked, before 
giving utterance to any thing actually disorderly, the proceeding is 
strictly for the purpose of preventing a breach of order ; where the 
objectionable words are actually uttered, and the member is caUed 
to order, the proceeding is to correct the irregularity and also to 
prevent its recun-ence ; and in both cases, where the caU to order is 
made in good faith, and for the real purpose of preser\4ng or 
enforcing the order of the house, it is a justifiable proceeding, even 
though the decision of the speaker should pronounce it a ground- 
less one ; but, where the call is made wantonly, and without suffi- 
cient cause, it is itself in the highest degi-ee disorderly .^ 

1764. The difficulty of precisely knowing beforehand, in most 
cases, what a member intends to say,^ is such, that proceedings in 
reference to disorderly words usually take place after the words 
have been spoken, and have in view only to correct the error, and 
to prevent its recurrence. Li many cases, however, it is known 
what topics a member intends to speak to, or what general line of 
argument he means to pursue, fi'om his own declaration ; and, in 
others, it is possible to form a sufficient judgment, from w^hat a 
meiTiber has afready said, or is in the act of saying, as to what he 
intends or is about to say, in order to justify and require proceed- 
ings to prevent the member fr'om committing a breach of order. 
Cases of the former description have afready been sufficiently con- 
sidered ; those of the latter require now to be explained. 



Section II. Of Proceedings to cosipel a Member to explattt, 

RETRACT, OR APOLOGIZE, FOR DISORDERLY WORDS. 

1765. It has already been seen, that ^\'-here disorderly words are 
used, which are of a character to give offence to the house itself, or 

1 Hans. (2), XIII. 208, 209. impossible for one man to say -n-hat anotiier 

2 Hans. (1), XIV. 368; Grey, III. 120. man intends to utter; it, therefore, is impossi- 

3 Mr. John Home Tooke, being interrupted hie for another to say what I am going to 
and called to order, in the course of his speech utter ; hence it is generally a little difficult, 
said, — "I enti-eat the house to consider, that until a man has got to the end of his propo- 
unless the brains and minds and understand- sition, to judge well whether he is in order or 
ings of man are formed exactly alike, it is not." Pari. Reg. LIX. 326. 



Chap. XL] disorderly words. 683 

to any of the members, it is the speaker's duty to interfere, and 
compel the offending member to explain, retract, or apologize for, 
his language. In some cases, however, the speaker does not feel it 
to be his duty to interfere, either because he does not immediately 
perceive the personal or offensive application of the words, or 
because he thinks the matter of trifling importance, or because 
he does not deem the language unparliamentary. It is nevertheless 
competent for any member, — either the member attacked, or any 
other, — to interfere, and take measures for the purpose of obtaining 
the authority of the house to compel the offender to retract or ex- 
plain his words. When the speaker calls upon a member to explain 
his language, he does it in the name, and by the authority, and 
with the implied sanction, of the house.^ The proceedings of a 
member, with the same view, are intended to obtain the same 
requisition of the house, upon the member, in express terms, which 
the speaker assumes impliedly to exist, when he demands an ex- 
planation. Before, however, any direct vote of the house can take 
place, in reference to an explanation or retraction of the words, the 
words themselves must be reduced to writing and properly authen- 
ticated, as having been spoken by the member. The words are to 
be taken down by the clerk, at the table, so as to become a part of 
his minutes ; in order, that, being so taken down, the house may 
be in a capacity to give its judgment upon them, whether they are 
or are not disorderly ; for, it is clear, that no question can be moved 
upon them, nor the sense of the house taken, untU the words ob- 
jected to form part of the minutes of the house.^ This proceeding 
wiU now be explained. 



Article I. As to the Time when the Complaint for disorderly 
Words must be made, 

1766. Anciently, it seems to have been allowable to take notice 
of words spoken in debate, for the purpose of censure, at any time 
during the session. At a later period, it was established as a rule, 
that exception should be taken the same day, and before the 
offending member had gone out of the house ; the member offended 
being entitled to move, that the former should not leave the house 
until he had given satisfaction, in what was by Mm spoken ; and, 
if the proceeding was omitted that day, " it could not be recalled 

> Hans. (3), XXIL 115, 116, 117, 118. 2 Eushworth, L 593 



684 LEGISLATIVE ASSEMBLIES. [PaRT VL 

afterwards, in order to avoid mistakes, and out of a willuigness, 
rather to pass by, than to take occasion of, offence." ^ 

1767. Li more modern times, the same reasons have led to a 
still fm-ther limitation of the time, within which the complaint 
must be made, and it is now the rule and practice, " that if any 
other person speaks between, or any other matter intervenes, before 
notice is taken of the words which give offence, the words are not 
to be wTitten down, or the party censured." ^ According to the 
rule, as thus stated, the member speaking may be interrupted in his 
speech, and the "^^ords complained of, at the moment they are 
uttered ; and they must be complained of, before any other speaks, 
or any other matter intervenes ; but the rule does not specify at 
what point of time, between the speaking of the words, and the 
intervention of other business, if the member should continue 
speaking, the complaint must be made. From the manner, how- 
ever, in which the rule is stated by distinguished speakers,^ as well 
as from the reason upon which the rule is founded, it seems neces- 
sary that the interruption should take place immediately on the 
speaking of the words,"^ or at all events, that it will be too late to 
notice them, if the member is permitted to continue his speech, for 
any length of time, without interruption.^ 



Aeticle II. As to the Mode of Proceeding- for obtaining the Order 
of the House to take down the Words, and taking them down 
and verifying them. 

1768. The member, who thinks proper to complain of words 
spoken, rises to order, and, first stating the words to which he takes 
exception, exactly as he conceives them to have been spoken, com- 
plains of them as disorderly, and desnes or moves that they may be 
taken down ; which it is the duty of the clerk, at the table to do, if 
it should be the sense of the house, that is, the opinion of a major- 
ity, that the words ought to be taken down. The sense of the 
house may be indicated either formally or in an informal manner. 

1 Scobell, 81. noticed before any other matter intervenes; if 

2 Hatsell, IL 269, note; Lex. Pari. 281. complained of after the intei-vention of other 
8 Par] Reg. XXII. 340; Same, XXV. 371; matter, the speaker wih put a stop to the pro- 
Same, XXVI. 26. ceedings, as a matter of order; \i between these 

* This appears to be the rule in the house of two points, the house will decide, on the mo- 
lords, Hans. (3), XLVIII. 321. tion to take down the words, both as to their 

5 May, 259. Perhaps, therefore, the rule being disorderly, and as to whether they have 

may be thus stated: the words may be noticed been seasonably noticed, 
the moment they are uttered; they must be 



Chap. XL] disorderly words. 685 

The latter is the mode as described by Mr. Hatsell. The former is 
indicated by Mr. Speaker Addington, in stating the form of pro- 
ceeding. 

1769. In the mode stated by Mr. Hatsell, the speaker assumes 
what the sense of the house is, or judges of it by such indications 
as it may see fit to give, without a formal question being put and 
decided by a vote. This manner of proceeding is thus described : — 
" The speaker then may direct the clerk to take the words down ; 
but if he sees the objection to be a trivial one, and thinks there is 
no foundation for their being thought disorderly, he will prudently 
delay giving any such direction, in order not unnecessarily to inter- 
rupt the proceedings of the house. If, however, the call to take 
down the words should be pretty general, the speaker will certainly 
order the clerk to take them down, in the form and manner of ex- 
pression, as they are stated by the member who makes the objec- 
tion to them." The words are then a part of the minutes in the. 
clerk's book ; and when read to the member who was speaking, he 
may deny that those were the words he spoke ; and if he does, the 
house must decide by a question, whether they were the words or 
not ? If he does not deny that he spoke those words, or when the 
house has itself determined what the words were, then the mem- 
ber may either justify them, or explain the sense in which he used 
them, so as to remove the objection of their being disorderly ; or 
he may make an apology for them.^ 

1770. According to the other method alluded to, the member 
complaining of the words and stating them as before, submits a 
motion that they be taken down, on which the speaker may 
proceed as already explained ; or the motion being seconded and 
debated, is put to the question, and decided in the ordinary man- 
ner. " K one member ow/t/," says Mr. Addington, " moves for the 
words of any other member to be taken down, it cannot be done. 
But, if it should be the opinion of a majority of the house, that the 
words ought to be taken down, then it becomes the duty of that 
member who first desired the words to be taken down, to state 
them himself, as he understood them, in writing, in order that they 
may be fairly submitted to the house in the form of a motion. 
The member who spoke the words, has aright to peruse them when 
thus put into writing, and to state what he apprehended he had 
actually said, if he differed with those put down. He had also a 
right to give his explanation to the house ; and, if there was a dif- 

1 Pari. Reg. (2,) XIII. 69. 
58 



i586 LEGISLATIVE ASSEMBLIES. [PaRT VL 

ference in the opinion of members respecting the words spoken, 
and those put down in writing, it then becomes a question for the 
house to determine." ^ K the member denies using the words 
written doT\Ti, a question is to be put to the house, whether these 
were the words used or not. In deciding this question, no debate 
or amendment can be allowed, nor can the process be repeated. K 
decided in the negative, there is of course no further question of 
order before the house.^ 

1771. The words being taken dovm, and the member himself 
admitting, or the house, on question, deciding that the ^^ords are 
truly taken down, and the member having justified, explained, or 
apologized ; if the member's justification, or explanation, or apol- 
ogy, is thought sufficient by the house, no further proceeding is 
necessary. But if any two members stiU think it necessary to state 
a question, so as to take the sense of the house upon the words, 
they can do so by making and seconding such a motion as they 
think proper. "When this is done, the member must withdraw be- 
fore the question is stated, and then the sense of the house must 
be taken. The same proceedings take place when the member 
offers no justification, apology, or explanation.^ 



Article III. As to subsequent Proceedings. 

1772. "When, in consequence of a member's refusal to justify, 
apologize, or explain, or of his failing to do so, to the satisfaction 
of the house, the proceeding has assumed the character of a per- 
sonal charge against him, for the purpose of censure or punish- 
ment, it comes more properly under another part of this treatise.^ 

1 Pari. Reg. XL VI. 599. * The proceedings of each legislative assem- 

2 Reg. of Deb. XII. Part 11. 2269. bly, in this countiy, varying more or less from 
^ HatseU, IL 273, note. For the pro- those of the common parliamentary law, as 

ceedings where -words used by the speaker above stated, are commonly regulated by a 
are complained of, see Comm. .Jour. XXXIL special rule. 
707, 708, the case of Sir Fletcher Norton. 
See also the Cavendish Debates. 



CmVP. XII.] MEMBERS PRESENT IN DEBATE. 687 



CHAPTER TWELFTH. 

RULES FOR THE CONDUCT OF MEMBERS PRESENT IN THE HOUSE 
DURING A DEBATE. 

1773. The rules for the conduct of debate, which have thus far 
been considered, relate to members addressing the house ; those 
which remain to be noticed, relate to the deportment of members 
present in the house during a debate, but not engaged therein. 
These rules require the members, I. To keep their places ; 11. To 
enter and leave the house with decorum ; III. Not to cross the 
house irregularly ; IV. Not to read books, newspapers, or letters ; 
V. To maintain silence ; VI. Not to hiss or interrupt.^ 

1774. I. The standing order of the lords requires them " to keep 
their dignity and order in sitting, as much as may be, and not to 
move out of their places without just cause, to the hinderance of 
others that sit near them, and the disorder of the house ; but when 
they must cross the house, to make obeisance to the cloth of 
estate." ^ 

1775. In the commons, also, the members should keep their 
places, and not walk about the house, or stand at the bar, or in the 
passages. If, after a call to order, members who are standing at 
the bar or elsewhere, do not disperse, the speaker orders them to 
take their places.-^ 

1776. II. In the lords, a member entering the house, " is to give 
and receive salutations from the rest, and not to sit down in his 
place, unless he hath made an obeisance to the cloth of estate." * 

1777. Members of the commons who enter or leave the house 
during a debate, must be uncovered, and should make an obeisance 
to the chair, while passing to or from their places.'' 

1778. III. In the lords, the order already mentioned relates in 
part to the manner of crossing the house ; and it is especially 
irregular to pass in front of a peer who is addressing the house. In 
the commons, members are not to cross between Ihe chair and a 
member who is speaking, nor between the chair and the table, nor 

1 Another ancient rule, "that no member * Comm. Jour. XII. 496; Same, XIX. 425. 

do take tobacco," Mr. May saj's is unworthy ■* Lords' S. 0. No. 15. 

of a place in the text. May, 259, note b. " ^ c. J. VIII. 264. 

a Lords' S. 0. No. 16. 



688 LEGISLATIVE ASSEMBLIES. [PaRT VL 

bet\\'een the chair and the mace, when the maoe is taken ofi the 
table by the sergeant. When members cross the honse, or other- 
>Adse leave their places, they should make obeisance to the chair.^ 

1779. IV. Members are not to read books, newspapers, or let- 
ters in their places. This rule, however, must now be understood 
with some limitation; for, although it is still regarded as m-egular 
to read newspapers,- any books and letters may be refen-ed to, by 
members preparing to speak, but ought not to be read for amuse- 
ment, nor for business unconnected with the debate.^ 

1780. V. In both houses, it is requu-ed of members to observe 
silence. In the lords, it is ordered, " that if any lord have occasion 
to speak with another lord in this house, while the house is sitting, 
they are to go together below the bar, or else the speaker is to stop 
the business in agitation." ^ In the commons, all members should 
be silent, or should converse only in a whisper. Whenever the 
conversation is so loud as to make it difficult to hear the debate, 
the speaker exerts his authority to restore silence by repeated cries 
of " order." ^ 

1781. VI. Any noise or disturbance, as by hissing or other inter- 
ruption while a member is speaking, is highly disorderly. In the 
house of commons, January 22, 1693, the following rule, which is 
only declaratory of the order of the house, on this subject, was 
adopted as a standing order : — "To the end that aU the debates in 
this house should be grave and orderly, as becomes so great an as- 
sembly, and that all interruptions should be prevented, be it ordered 
and declared, that no member of this house do presume to make any 
noise or disturbance whilst any member shall be orderly debating, 
or whilst any bill, order, or other matter, shall be in reading or 
opening; and, in case of such noise or disturbance, that Mr. 
Speaker do call upon the member by name, making such disturb- 
ance ; and that every such person shall ^ incur the displeasure and 
censure of the house." " 

1782. The foregoing rules, relating to the observance of decorum, 
among the members present in a legislative assembly, though 
expressed in the form of special orders, are nevertheless evidence 
of the common parliamentary law, and are in force here with such 



1 May, 260. This rule, however, Mr. May * Lords' S. 0. 20. 
remarks, is not observed, when a member is * Comm. Jour. IL 135. 
speaking from the third or any higher bench « Cong. Globe, XI. 498. 

from the floor. f Comm. Jour. U. 66; Same, I. 152; May, 

2 See ante, § 1664. 22. 
» May, 261; Comm. Jour. IV. 51. 



Chap. XIL] members present in debate. 689 

alterations and additions as may be found necessary in each assem- 
bly. The regulations relating to the observance of decorum, gen- 
erally, of which the above constitute a part, have already been 
stated, 1 and are commonly established in the rules and orders of 
each assembly. 

1 See also ante, § 373. 

58*' 



LAW AND PRACTICE 



OF 



LEGISLATIVE ASSEMBLIES. 



PART SIXTH. 

OF THE FORMS AND METHODS OF PROCEEDING IN 
A LEGISLATIVE ASSEMBLY. 



THIRD DIVISION. 

OF ASCERTAINING THE SENSE OF THE ASSEMBLY IN 
REFERENCE TO ANY QUESTION BEFORE IT. 



1783. All the proceedings, which have thus far been described, 
have only had for their object to bring a proposition into a form to 
be put to the question ; that is, a form in which the sense, will, or 
judgment of the house, in reference to the subject under considera- 
tion, can be expressed by a simple affirmative or negative ; it being 
clear, that no proposition can receive the consent of the house, or of 
the greater number of the members, unless it is in such a form as 
to be simply affirmed or denied. The subject of this division is 
treated of, in four chapters, namely : I. Of the right and duty of 
members to vote ; IL Of the different modes of taking a question ; 
III. Of the question thus taken ; IV. Of the addition or disallow- 
ance of votes. 

(6911 



693 LEGISLATIVE ASSEMBLIES. [PaRT VI 

CHAPTER FIRST. 

OE THE EIGHT AND DUTY OF MEMBERS TO VOTE. 

1784. As the members of the house are also members of the 
body pohtic, and connected with their fellow-citizens in all the 
ordinary relations of life and of business, it may, of course, some- 
times happen, that they are themselves personally interested in the 
questions^ that come before them in their capacity of legislators. 
When this is the case, decency requires that members so situated 
should not sit as judges, and, by their sufErages, decide their own 
case ; but justice also requires, that their interests should not be 
compromised vidthout their being heard. It is a rule, therefore, that, 
when a member is personally concerned, in a question, — either as 
involving his character and conduct, — his right as a member, or 
his pecuniary interest ; he is first to be heard in his place, if he 
desires it, and is then to withdraw .from the house, during the 
debate and until the question is decided.^ 

1785. The precise time when a member is to withdraw is not in 
all cases the same ; it depends entirely upon the application of the 
principles above stated, to the particular circumstances of each 
case. The member is entitled to be heard ; but he cannot be heard 
until he knows what is alleged against him ; and he ought at all 
events to withdraw before the debate commences. In practice, 
therefore, the time at which a member should withdraw is deter- 
mined by the nature of the subject-matter in which he is concerned, 
or of the charge against him. When this is contained in, or 
founded upon, reports, petitions, or other documents, or words 
spoken and taken down, which sufficiently explain the charge 
against the member, or the subject in which he is personally inter- 
ested, it is usual to have such paper read, and for the member to 
be heard in his place, and then to withdraw before any question is 
proposed.^ But if the charge or subject-matter is only contained 
in the question itself, the member is entitled to have the question 
proposed, and is then to be heard, and to withdraw after the ques- 
tion has been proposed, and before the debate, properly speaking, 
has commenced.^ 

1 See also ante, § 656, as to preliminary 2 Hatsell, IT. 170, 171, note, 
md collateral questions. * May, 264, 265. 



Chap. L] eight and duty of members to vote. 693 

1786. It does not seem sufficient, however, that there should 
have merely been some report, or some other proceeding in the 
house, in order that a member should be heard upon the same, and 
then withdraw ; the rule appears to apply only to the case of a 
report, or other previous proceeding, which contain a dkect and 
pointed accusation.^ 

1787. Where the charge against a member is one, in reference 
to which witnesses are examined, — as, for example, where articles 
of impeachment are exhibited against a member, and witnesses are 
thereupon examined, — the member is to be heard in his place, and 
withdraw after the examination of the witnesses.^ 

1788. If a member should neglect or refuse to withdraw at the 
proper time, the house will order him to withdraw. Thus, in the 
lords. Lord Pierpoint, in 1641, and Lord Herbert of Cherbury, in 
1643, were commanded to withdraw ; and, in the commons, in 1715, 
it was ordered, upon question and division, " that Sir Wm. Wynd- 
ham do now withdraw." ^ 

1789. The duty of the members of our legislative assemblies to 
vote in all questions that may arise therein, is commonly expressed 
by a rule in affirmance of the common parliamentary law, and an- 
other rule providing " that no member shall vote on any question 
in the event of which he is immediately and particularly interested," 
and sometimes it is added, " distinct from the public interest." 
Concerning the rule, as thus expressed, and its practical apphcation, 
three remarks are^ to be made : first, that it does not change the 
rule of the common parliamentary law, as above laid down, but 
merely confines the interest in the question which excludes from the 
right of voting to pecuniary; second, it provides no means, any 
more than the common parfiamentary law, of enforcing its own 
execution, and, notwithstanding the rule, members may vote or 
not, as they please ; * and third, it does not apply to merely prelimi- 
nary or incidental questions, on which interested members are 
allowed to vote.^ 

1790. If a member, whose duty it is to withdraw, should not- 
withstanding be suffered to remain in the house, and to vote on 
the question, either from inadvertence, or because his interest in it 
is not known or pointed out, his vote may be disallowed by the 
house, on a motion made and question proposed for that purpose ; 
and, in such a case, the question on the motion to disallow the 

1 Hatsell, 11. 172, note. * Cong. Globe, XX. 84. 

2 Hatsell, IV. 260, and note. * « J. of H. 27th Cong. 1st Sess. 1283; Cong. 
» May, 265. Globe, VIH. 531. 



694 LEGISLATIVE ASSEMBLIES. [PaKT VL 

vote, is within the nile requiring a member to withdraw.^ The 
member should withdraw, in such a case, before the question is 
proposed.^ 

1791. In determining whether a member is so personally con- 
cerned in a question as to make it necessary for him to withdraw, 
there can be little or no difficulty in cases where his character or 
conduct is involved, or where his right to his seat is concerned. 
But, in cases of a supposed pecuniary interest, — though the rule 
is sufficiently plain, — its application in particular cases is often 
attended with great difficulty. The rule is thus stated by Mr. Hat- 
seU : " Interest in a question pending in the house, is good cause 
for disallowing a vote ; but such an interest must be a direct pecu- 
niary interest, belonging to a separate description of individuals, 
and not such as also belongs to aU the citizens, arising out of any 
measure of state policy. Generally speaking, it applies only to 
private biUs, or bills relating to individuals, such as estate biUs, in- 
closure biUs, canals, joint-stock companies, &c., wherein only the 
individual profit or loss is concerned, and, on like grounds to sub- 
scribers to« the loyalty loan ; but does not apply to questions of 
interest arising out of public measures, such as tax bills, colonial 
regulations, domestic trades, and the like." ^ Questions of interest 
are further considered in the fourth chapter of this division, in which 
the subject of the allowance or disallowance of votes is treated of. 



CHAPTER SECOND. 

OF THE DIFFERENT MODES OF TAKING A QUESTION. 

1792. In order that any proposition may become the act, or 
express the sense, judgment, opinion, or will of the house, it is 
necessary that it should receive the assent of a majority of the 
members, or of such other number as may be agreed upon, or 
otherwise fixed, beforehand ; which may be manifested in two 
ways, namely, either by no one objecting to the proposition, — in 
which case, the sense of the house is ascertained by their common 

1 Hatsell, IL 169, note. s Hatsell, XL 169, note. See May, 281. 

2 May, 284; Comm. Jour. LXXX. 110; 
Same, XCI. 271. 



Chap. II.] taking the question by consent. 695 

consent, — " the thing being sufficiently declared when no man ' 
contradicts it; "^ or by a majority, or the requisite number, of the 
members declaring themselves in its favor ; in which case, the 
sense of the house is ascertained by a question put and determined. 
Where the sense of the house is ascertained by taking a question, 
the course is, in the first instance, for the members to answer aye or 
no ; and the speaker to decide, by his ear, which side is the greater. 
If his decision is not satisfactory, then measures are to be taken, 
by means of dividing the house, to ascertain the exact number on 
each side. Hence, in parliament, there are three modes of ascer- 
taining the sense of the house, in reference to any proposition sub- 
mitted to it, namely, by consent, by the voices, and by a division. 
These several modes of proceeding, as they are practised in the 
house of commons, with the points of difference between them 
and the analogous proceedings in the lords, will be stated. The 
foregoing being in use here, with some other methods and usages 
which are peculiar to this country, the latter will be treated of 
separately.^ 

Section L Of taking the Sense op the House by their 
COMMON Consent. 

1793. When this mode is adopted, the question is not put io' 
those who are on the one side or on the other to declare themselves, 
but simply. Is it the pleasure of the house that such a thing should , 
be done ? And if no member dissents, then the thing is ordered, 
without putting the question in any other form. If, in any such 
case, objection should be made, even by a single member, the ques- 
tion should be put in the usual form ; and perhaps it might be 
proper in some cases, where no motion had in fact been made, for 
the speaker to require one to be regularly made and seconded, be- 
fore putting the question. This mode of taking the question is 
exclusively adopted where the affirmative requires the unanimous 
assent of the members present ; in which case, the objection of a 
single member is as effectual to defeat a proposition, as the vote of 
a majority on ordinary occasions. But in this case, the objection 
must be made with the same formality as a motion ; and can only 
be withdrawn in the same manner. It is scarcely necessary to 

1 Grey, V. 129. . alluded to in connection with the practical 

2 The different modes of taking a question, questions to which their application gives 
which have already been mentioned in the rise. The paragraphs in which these modes 
second part, (ante, § 382 to 411,) are here again are described are referred to. 



696 LEGISLATIVE ASSEMBLIES. [PaRT VI 

observe, that where a question is taken in this manner, objection 
must be made, if at all, when the question is put ; and that if made 
afterguards, especially if the supposed vote has already been acted 
upon, or the assembly has passed to any new business, it will then 
come too late. 



Section II. Of taking- the Sense of the House by the Voices. 

1794. This mode is commonly practised where a motion is regu- 
larly made and seconded, and proposed from the chair as a ques- 
tion ; and is invariably resorted to, where the question has given 
rise to debate. In the latter case, when the debate is closed, 
which is kno^\Ti by members ceasing to rise, or by cries of ques- 
tion, or in some other, and perhaps more irregular, manner, as 'weQ. 
as when no debate has taken place, it is the duty of the speaker 
to put the question to the house for its determination ; which is 
done in the manner already described.^ Sometimes the speaker, 
not being able to decide as to the majority, by the sound of the 
voices, puts the question a second, or even a third time, before de- 
claring his opinion. The question is- stated, or intended to be, dis- 
tinctly by the speaker ; but, in case it should not be heard, it may 
be stated again. The decision of the speaker is the judgment of 
the house, and will stand as such, unless upon a division, (which 
\^dll be presently described,) and an enumeration of the numbers 
on each side, it should be ascertained that he was mistaken in his 
opinion. 

1795. When the question is put, all those members, and they 
only who are then properly in the house, are allowed and may be 
compelled to vote ; every member thus present, is supposed to give 
his voice on the one side or the other ; and the subsequent proceed- 
ings, in dividing the house and numbering those who vote on 
either side, take place for the sole purpose of ascertaining what 
members thus gave, and the manner in which they gave, their 
voices. The voice which a member gives,, is his vote ; so, that if a 
member gives his voice with the ayes, and, on a division, goes with 
the noes, and this fact is brought to the notice of the speaker, he 
wiU direct the member's vote to be counted "with the ayes. But 
where a member answers Mdth one party, in confusion or through 
mistake, when he intends to vote with the other, he has a right to 
retract any such declaration erroneously made, and to divide and 

1 See ante, § 384, 385. 



Chap. II.] taking the question by the voices. 697 

be counted with the side with which he intended to answer in the 
first place.^ The point of time to which all the proceedings refer, 
which take place for the purpose of ascertaining the number of 
members voting on each side, being the putting of the question in 
the manner described, it seems important before proceeding to 
describe the process of division, to define the limits of what is 
technically called " the house," in order to determine what members 
are in the house at the tirne the question is put. As to the other 
qualification of the right to vote, namely, being rightfully in the 
house, it is sufficient to say, that all the members present, and not 
under obligation to withdraw, on the ground of being personally 
concerned in the question, are rightfully present, and may vote 
whether they have been present at the debate or not, and even if 
they have but just come in before the question is put. 

1796. For the purpose of determining upon the right of mem- 
bers to vote, the house consists of the room or chamber, in which 
the members sit with the speaker in the chair, the clerk at the 
table, and the other officers attending, for the transaction of the 
business of parliament, and which is technically denominated " the 
house," or '•'the body of the house," together with all the rooms, 
places, and passages adjacent thereto, and to which there is no 
other avenue than through the house. Mr. HatseU, in allusion to 
the chamber of the house of commons, as it existed in his time, 
speaks of a place called Solomon's porch, and a room called the 
speaker's room, or the speaker's little chamber, and of the galleries, 
as within the house, there being no access to them but through the 
house ; and of a room called the speaker's chamber, and of the 
lobby, as not being within the house, they being accessible from 
without as well as connected with the house. According to Mr. 
Hatsell, members who were in Solomon's porch, or the speaker's 
room, were in the house ; those who were in the lobby,^ or in the 
speaker's chamber,^ were not. 

1797. If the speaker, being doubtful of the majority of the 
voices, puts the question a second time, before declaring his opin- 
ion, a member who comes into the house between the first and 
second putting of the question, is not deemed to be within the 
house at the putting of the question, and is not entitled to vote ; ^ 
this proceeding being nothing more than a mefisure adopted by the 
speaker to enable him to determine (not the question, for that haa 

1 Hans. (1), XXXVII. lior. s Hatsell, H. 187, note. 

3 May, 268. * Hatsell, II. 187. 

59 



698 LEGISLATITE ASSEMBLIES. [PaRT VL 

already, in fact, been determined, but) in what manner the voices 
were given, when the question was first put. 



Sectio]!^ IIL Of tajiixg the Sexse or the House by a 

Division. 

1798. The house may acquiesce in the opinion of the speaker, 
that the ayes have it, or the noes have it, in "v^'hich case the ques- 
tion is said to be resolved in the atfirmative or negative, as the case 
may be, according to the supposed majority on either side; but it 
is the right of any one member to dispute the fact, and to have a 
di\ision of the house, pro^dded he demands it within the proper 
time, that is, before any new motion is made, or other parHament- 
ary proceeding commenced, or any member, not in the house when 
the question was put, has come in,^ in either of which cases it is 
too late to have a division ; and provided also that voices were 
given on both sides ; for it is not competent for the party, -v^dth 
whom the speaker declares, to dispute his decision, and if there are 
no voices on the other side, there is, in fact, no other party to the 
question.2 

1799. If any member, therefore, after the speaker has declared 
that, in his opinion, the ayes or the noes have it, as the case may 
be, stands up and declares that he doth beheve that the ayes or the 
noes have it, contrary to the speaker's opuiion, then the speaker is 
to give direction for the house to divide. This is the formal mode ; 
but a division sometimes also takes place upon the irregular caU of 
several members at once, that the ayes or the noes have it contrary 
to the speaker's decision.'^ When a division has been called for, it 
must go on, provided two members can be found for tellers on each 
side, unless all the members agree to waive it before any go forth.* 

1800. When a division is demanded, all the members, who were 
in the house, when the question was put upon which the voices 
were given are not only permitted but compellable to vote, and, 
consequently, are not at hberty to withdraw from the house ; ° and, 
on the other hand, no members, who were not then in the house, 
can be permitted to vote, or to enter the house for that purpose.^ 
As soon, therefore, as a division is ordered, the speaker immedi- 
ately gives directions to the sergeant-at-arms, to clear the house of 

1 By Mr. Omlovr, Hatsell, H. 194, note. * Hatsell, II. 194, note. 

2 Hans. (3), X\'II. 194. = Hatsell, U. 196, note; Same, 195. 
s May, 224. ^ Hatsell, E. 17", note. 



Chap. II.] taking the question by a division. 699 

strangers, and to shut the doors.^ It is the established practice, that 
Btrangers must be withdrawn before a division can take place, 
though the question may be put and the voices given, while they 
are present. 

1801. The speaker then appoints two members, on each side, as 
tellers, to count the house ; ^ but, if, on naming the tellers, it ap- 
pears that there is but one member on one side of the question, 
and consequently, that two tellers cannot be appointed on that 
side, the division cannot go on, and the speaker declares on the 
other side.3 If there are two tellers, the division must go on and be 
reported though on one side the return of the members should be 
none."^ 

1802. The tellers being appointed, the speaker directs the house 
to divide, which is effected in the manner described in the second 
part.5 

1803. It is a part of the duty of the tellers to see that every 
member votes, in the division, who was in the house when the 
question was originally put, and to prevent any member from vot- 
ing, who was not then in the house. If, therefore, they discover 
any members, in the places and passages, within the house, but 
not within the body of the house, who do not retire with the mem- 
bers, it is their duty to bring such members forward, and to compel 
them to vote. Such members if they were not in the body of the 
house, or in the gallery when the question was put, are entitled 
to have the question stated to them,^ and are then inquired of by 
the speaker on which side they vote ; whereupon they answer with 
the ayes or the noes, and are then directed to withdraw into the 
lobby appropriated to the side on which they vote. Members who 
are in the body of the house, or in the gallery, when the question is 
put, are not entitled to have it stated to them.''^ At the time, when 
the division was effected by one party's remaining in the house, and 



1 Hatsell, II. 200, note. (J. of H. IX. 139 ; Same, 27th Cong. 1st Sess. 

2 Hatsell, II. 239; Scobell, 26, 27. 477;) among the nays, if they voted at all, 

3 Hatsell, II. 201. This principle, which the movers must have been included. 

may exist where the question is taken H|r * Hatsell, H. 199, 200, 201. If all, that intend 

tellers, cannot, of course, prevail, where the to go forth, go out before the speaker appoints 

question is taken by yeas and nays. On two tellers for that side, he must call for two of 

occasions, in the lower house of congress, it them to comeback into the house to be tellers; 

is recorded, that there was only one in the and so also if the door be shut. The like for 

affirmative, (J. of H. VII. 89, 853); and in one teller, if only one teller has been before 

one of them, (J. of H. VII. 353), that the appointed. Hatsell, II. 200, note, 

mover voted in the negative. On two occa- * See ante, § 390, 391. 

Bions, in the same assembly, it is recorded, * Hatsell, II. 187, note, 

that the vote was unanimously in the negative, ' Hatsell, II. 195, note. 



700 LEGISLATIVE ASSEMBLIES. [PaUT VL 

the other going into the lobby, members who were in the body of 
the house, or in the gallery, when the question was put, and from 
inattention, or any other circumstance, neglected to go forth, until 
after the door was shut, had no option where they would be told ; 
but were obhged to be told with the party who remained in the 
house, although they were thus made to vote contrary to their 
known and avowed inchnation.^ In regard to others, who were 
not in the body of the house, or in the gaUery, but in some of the 
adjacent passages or rooms,- they were entitled to have the ques- 
tion stated to them, as above mentioned, and to go out or remain 
as they pleased.-^ Since the adoption of the new mode of di^iding, 
all who come forward or are compelled to vote, after the members 
have v^dthdrawn, must, of necessity, withdraw into which of the 
lobbies they please. 

1804. It seems, that when the mere statement of the formal 
question would not be sufficient to inform the member of what the 
question in fact was, — as, for example, when it relates to some 
paper or document, — in such case, the member may also demand 
to have that paper read to him, before he can be compelled to vote 
upon it, if he has not akeady heard it read ; or he may be inquired 
of by the speaker, whether he has heard that paper read ; and if he 
answers that he has not, that then it must be read to him before 
he is asked how he votes on the question. Thus, where on the 
question that a petition be rejected, the tellers brought forT\"ard a 
member to vote, who, on having the question stated to Mm, said he 
voted for the rejection of the petition, and the speaker was there- 
upon requested to ask him whether he had heard the petition read, 
and the member objected, the speaker (]Mr. Abbott) declared that 
it must be answered, and put it to him accordingly, the member 
answering that he had not heard it, it was read to him, and he per- 
sisted in his vote.^ 

1805. AYhen both parties have returned into the house, and have 
been told, the tellers on either side come up to the table and report 
the numbers to the speaker, in the manner aheady stated^ in a 
preceding part. # 

1806. It is the duty of the speaker to vote only when the nimi- 
bers are equal ; and he is not permitted to vote at any other time, 
except when the house is in committee of the whoJe ; in which 



1 Hatsell, n. 195, note. ^ Hatsell, U. 196. 

2 As in the speaker's room, or Solomon's * Hans. (-1), XXXV. 316. 
Porch, HatseU, n. 196. See ante, § 392. 



Chap. II.] taking the question by a division. 701 

case, he votes with the other members^ and the chairman gives the 
casting vote. In the performance of this duty, the speaker or 
chairman is at liberty to vote, like any other member, according to 
his conscience, and without assigning a reason ; but, in order to 
avoid the least imputation upon his impartiality, it is usual for him, 
when practicable, to vote in such a manner as will not make the 
decision of the house final, and at the same time, to explain his 
reasons, which are entered on the journals.^ 

1807. When a division takes place in the house,^ and the tellers 
are counting the membeis, it is the duty of the lattor to maintain 
perfect silence, in order that the tellers may not be interrupted ; for, 
if there is any ^nistake made, or the tellers are not agreed, they 
must begin and teU again. For the same reason, no member 
should remove from his place, when they have begun telling ; nor 
can any member be counted standing or sitting on the steps, or in 
the passage ways, or in the area in front of the chair, but onlj'^ in 
his seat.3 If, in announcing the numbers to the speaker, there 
should be any mistake, it may be corrected by the tellers, if they 
are agreed. 

1808. K the tellers should be unable to agi-ee upon the numbers ; * 
or if any mistake should occur, which the tellers could not correct ; 
or if any irregularity should be discovered, as, for example, that a 
stranger had divided and been counted with the members on .one 
side;^ there is no alternative but another division, if any mem- 
ber demands it.** If members vote, who are not entitled to do so, 
either because they are not in the house, when the question is put, 
or because they are personally concerned in the question, their votes 
may be disallowed afterwards, and the numbers corrected accord- 
ingly. K members, who are entitled to vote, are prevented from, 
doing so, by the decision of the speaker, it is presumed that his 
decision in this respect may be revised, and the votes of such mem- 
bers allowed. 



1 May, 275. Mr. Speaker Seymour, giving spealvcr declared himself with the ayes, on 

his casting vote with the ayes on a qxiestion the ground, that the original question was tlien 

of adjournment, "jestingly said, he would fit to be submitted to the house. Comm. 

have his reasons for his judgment recorded, Jour. LX. 202. 

namely, because he was very hungry." Grey, . ^ Xhe mode of dividing, when the house is 

II. 177. The most remarltable occasion, per- in a committee of the whole, has been ah'eady 

haps, on which a speaker's casting voice was sufficiently described. (See ante, §400.) It 

ever given, was when Mr. Speaker Abbott gives rise to no peculiar questions, 

gave his vote for the impeachment of Lord ^ Hatsell, II. 198. 

Melville, on the 8th of April, 1805. The pre- * May, 275 ; Hatsell, II. ROl. 

vious question having been moved, and the ^ Pari. Deb. VI. 68, 

numbers on the division being equal, tlie » Pari. Deb. VI. 58. 

59* 



702 LEGISLATIVE ASSEMBLIES. [PaET VL 

1809. If any question arises, in point of order, during a division, 
and before the numbers are declared by the speaker,^ the speaker 
must take upon himseK to decide it " peremptorily ; " for as it can- 
not be decided by the house, without having a division upon a 
division, there is no other practical way of settling the question, 
without great delay and inconvenience ; and, in such a case, there- 
fore, the determination of the speaker must be implicitly submitted 
to, untU the division is over and the result declared. The decision 
may then be revised by the house, and, if irregular or partial, may 
be corrected either by altering the numbers, or by a new division. 
Thus, where a division had taken place, and the tellers had reported 
the numbers sixty-four to twelve, notice was then taken by a mem- 
ber, that a particular member was not in the house when the 
question was put ; the speaker thereupon inquu-ed of the member 
alluded to, " whether he was in the house and heard the question 
put ? " The member answered that he was in the speaker's cham- 
ber ; upon which the speaker said that his vote must be disallowed, 
and immediately reported the numbers sixty-four to eleven.^ So, 
where a division having taken place, objection was made to the 
numbers reported by the tellers, on the ground, that certain mem- 
bers, who voted with the ayes, were personally interested ; but it 
was decided that they were not so interested as to preclude them 
frona voting for the repeal of a public act, and the question was 
thereupon declared to be resolved in the affirmative.^ 

1810. It is the duty of the speaker, also, to give all directions 
that may be necessary, for conducting the proceedings on a divis- 
ion, in a proper manner,* as well as to decide all points of order 
that may arise.^ Thus, where, on occasion of a division, and whilst 

♦strangers were withdrawing from the gallery, several members 
came in from the rooms above stairs ; and the m-egularity being 
taken notice of by the tellers, and complaint made to the speaker ; 
the speaker, though the division was actually made, and the 
members who were to go out were withdrawn into the lobby, 
ordered them aU to come back into the house, and then stated, 
what he apprehended to be the rule of the house, namely, that such 
members as were not present in the house, and did not hear the 



1 Hans. Pai-1. Hist. III. 48, 49; Hans. (1), his name was thereupon erased by nnani- 

XXXV. 316. mous consent. Cong. Globe, IV. 217. 

'■I Hatsell, II. 18T, note. So, ivhen notice ^ Comm. Jov;r. LXIX. 455. 

was taken, that a certain member, whose * See a most remarkable instance, Comm. 

name was recorded in *the afBrmative, was Jour. XXXVII. 901. 

not in the house when the question was taken, ^ HatselJ, II. 195, note. 



Chap. IL] taking the question by a division. 703 

question put, had no right to vote ; thereupon, after a conversation 
on the subject, the speaker stated the rule again, and all the mem- 
bers, who were under the predicament described, withdrew ; and 
the division went on, without counting those members who had 
come down from above stairs.^ So, where, after the house had 
been cleared, and the doors closed, three members forced the door 
and entered the house a second time, after having been directed to 
withdraw, the speaker gave peremptory orders to the sergeant-at- 
arms to exclude them from the house.^ 

1811. For the purpose of forming a determination upon ques- 
tions arising in the course of a division,^ in reference to which there 
cannot be any debate, the speaker or other presiding officer allows 
members to express their opinions sitting in their seats, wdth their 
hats on, to avoid even the appearance of debate ; but this cannot 
be done without the speaker's leave, and must cease at his 
pleasure.* 

1812. "When, in the course of a division, a question arises as to 
the right or duty of a member to vote, depending on the fact of his 
being in the house or not, when the question was put, the practice 
is for the speaker to inquire of the member whether he was present 
in the house when the question was put ? If he answers that he 
was, the speaker directs him to vote ; if he answers that he was 
not, the speaker declares that he cannot vote ; if the member 
answers specially as to the precise place where he was, when the 
question was put, the speaker decides that he has or has not a right 
to vote, according to the speaker's judgment as to whether the 
place specially designated by the member, is or is not within the 
house.s 

1813. If, on a division, members should mistake the question, 
and divide on the wrong side ; or, if the tellers, through mistake or 
design, should misrepresent the numbers ; and the sense of the 
house is thereupon regularly declared ; — it seems, as laid down by 
Lord Mansfield, that the matter cannot be put right, and the de- 
clared sense of the house set aside.^ The house of commons, how- 
ever, on a late occasion, allowed a mistake of tellers to be corrected 
the day after the vote was declared. " On the 19th of February, 
1847, notice was taken that the number of the noes reported by the 

1 Hatsell. n. 195, note. be made, or question to be raised, whilst it is 

s Hans. (3), XLVH. 2, 3, 4. goincj on. 

* According to our practice, though the pre- * Hatsell, H. 199. See also ante, ^ 1809. 
siding officer will allow the pending question ^ Hatsell, II. 198, note, 199, note. 
to be open for debate after a division has com- ' Pari. Reg. II. 168, 169. 
aienced, he will not allow any new motion to 



704 LEGISLATIVE ASSEMBLIES. [PaET VI 

tellers on a previous day, did not correspond with the printed lists ; 
and the tellers for the noes being present, stated that the number 
had been reported by them by mistake. The clerk was ordered to 
correct the number in the journal." ^ But, according to the prac- 
tice of our legislative assemblies, a member may change his vote 
as many times as he pleases ; and it is our constant practice to 
alter the decision of the assembly as recorded in the journal, to 
make it correspond with a previous correction of the votes.^ 

1814. It being necessary in order to a division, that the question 
should be first put and taken by the voices, — the object of the 
division being, as already stated, merely to ascertain who gave 
their voices, and how they gave them, — it sometimes happened, 
when a division "vvas not expected, and the question was put and 
taken by the voices, before the house was cleared of strangers, and 
the doors closed, and then a division was called for, that many 
members in the rooms above and adjacent to the house were pre- 
vented from voting, because they were not present in the house 
when the question was put, although they might be present before 
the division actually commenced. This inconvenience did not 
occur, when it was known or expected that a division would be 
called for ; for, in that case, the speaker directed the withdrawal of 
strangers before putting the question, and thus gave members time 
to come in and vote. In order to remedy the difficulty, which 
sometimes occurred when a division was not expected, Mr. Green, 
chairman of committees of the whole in the year 1843, gave notice, 
that, unless he should be otherwise directed by the house, it was 
his intention, after he had put the question in the first instance, to 
put it again as soon as the gallery was cleared ; and to allow mem- 
bers, who might then be present, to take part in the division.^ This 
suggestion seems to have been acted upon, and the practice to have 
become established accordingly. When, therefore, a division is 
not expected, and the speaker or chairman puts the question, before 
directing the house to be cleared and the doors closed ; and upon 
the voices being given, and the result declared by the speaker, a 
division is then called for, the speaker thereupon directs the house 
to be cleared, and puts the question a second time after the doors 
are closed ; and thus, members coming in between the first and 
second putting of the question, are enabled to vote. 

1815. Another practice has also been recently introduced into the 



1 Comm. Jour. CXI. 134. ^ Hans. (3), LXVI. 420. 

2 Post, § 1549 n. 



Chap. II.] taking the question by a division. 705 

house of commons, which, in connection with that already adverted 
to, very much facilitates the assembling of the members in the 
house, for the purpose of a division, namely, the ringing of a bell 
when a division is about to ensue. When it is knoAvn, therefore, 
beforehand, that a division will be called for, the speaker, as soon 
as the debate is closed, and, in other cases, as soon as a division is 
called for, gives the order that " strangers must withdraw," and, at 
the same instant, the door-keepers shout, " clear the gallery," and 
ring a bell, which communicates with every part of the building. 
This " division beU," as it is called, is heard in the lobbies, the re- 
freshment rooms, the waiting rooms, and wherever members are 
likely to be dispersed, and gives notice that a division is at hand. 
Those who wish to vote hasten to the house immediately; and 
while the messengers are engaged in excluding strangers, have time 
to reach their places.^ 

1816. " It is a very unparliamentary proceeding," says Mr. Hat- 
sell, " to divide the house for the sake of a division only ; whereas 
the old rule, and practice too, were, that the house should be di- 
vided only when the speaker's determination upon the voices was 
wrong, or doubtful, and thought to be so, by the member calling for 
the division, as the words then used imply ; for, when the speaker 
has declared for the ayes or the noes, upon the cry, the member 
who would have the division, says, " the contrary voice has the 
question." ^ 



Section IV. Of the Differences between the two Houses in 
the Mode of taking the Question. 

1817. It remains now to take notice of some differences which 
exist between the two houses, in the mode of taking the question 
by the voices, and upon a division ; there being no essential dif- 
ference between the two, where the matter is determined by con- 
sent. The question is taken, in the first instance, and the house 
divided, in the house of lords, in the manner already stated. ^ 

1818. One of the most important differences between the two 
houses, giving rise to a corresponding difference between them, in 
the mode of proceeding in taking a question, is the right of peers 
to appoint other peers to vote for them in their absence ; which is 

1 Jlay, 268. result of a vote, can be corrected. See ParL 

" Hatsell, H. 199, note, as to whether a mis- Reg. (1), II. 160 to 169. 
take of the presiding officer, in declaring the ^ gge ante, § 401. 



706 LEGISLATIVE ASSEMBLIES. [PaKT VI: 

called making or giving their proxies. In order, however, to entitle 
a peer to exercise this right, he must obtain the king's leave to be 
absent from his place in parliament. The standing orders of the 
house in reference to proxies provide, that no lord shall be capa- 
ble of receiving above two ; that proxies from a spuitual lord shall 
be made to a spiritual lord, and from a temporal lord to a temporal 
lord ; that if a peer, having given his proxy, sits again in the house, 
his proxy shall be thereby determined ; that proxies may be used in 
preliminaries to private causes, but not in giving judgment ; that 
no proxy shall be made use of in any judicial cause, although the 
proceedings are by way of bill ; that a lord, having a proxy and 
voting, shall give a vote for the proxy, in case proxies are called for. 
Proxies are to be entered with the clerk, but not on the same day 
on which the peers giving them have been present in the house ; if 
entered after three o'clock, they cannot be used the same day ; and 
they cannot be used at all when the house is in a committee of the 
whole.i 

1819. " The most usual practice," says Mr. May, " is for lords to 
hold the proxies of other lords of the same political opinions, and 
for the votes of both to be declared for the same side of a question. 
This is the true intent of a proxy ; but it occasionally happens that 
a lord has been privately requested by another lord, whose proxy 
he holds, to vote for him on the opposite side ; in which case, it is 
understood to be regular to admit their conflicting votes in that 
manner. " ^ But it is said, that this variation from the ordinary rule 
is permitted upon the supposition, that between the time of voting 
and of declaring the vote of the proxy, a lord may be supposed to 
have altered his own opinion ; for the form of the proxy would 
appear to delegate to the lord who holds it, the absolute right of 
decision for the absent lord, without any reference to the opinions 
of the latter, expressed after the signature of that instrument.^ 

1820. Another point of difference, which requires to be adverted 
to, between the two houses, in respect to their proceedings in the 
taking of a question, results from the right of peers to protest 
against any vote fi-om which they dissent. In addition to the 
power of expressing his opinion by his vote, every peer is dt liberty 
to record his dissent, with the reasons or grounds of it, in the form 
of what is called a " protest," entered on the journals and signed 
by him. Every one who dissents, is, of course, free to express his 

1 May, 278, 279. » May, 270. 

2 Hans. (3), X. 1044. 



Chap. IL] American modes of taking a question. 707 

dissent in his own way ; but it is customary, where several lords 
concur in the same opinions, for all of them to sign the same protest. 
Any peer may, however, sign a protest, with others, for some of the 
reasons given, specifying which ; or, for certain of the reasons given, 
and for others peculiar to himself which he particularly sets forth. 
According to the standing order of the house, all peers, who shall 
make protestation or enter their dissents to any votes, are required 
to " cause their protestation or dissents to be entered into the clerk's 
book, the next sitting day, before the hour of two o'clock, otherwise 
the same shall not be entered ; and shall sign the same before the 
rising of the house the same day." If a protest, or any part of it, 
or any of the reasons, are disrespectful to the house, or, in any 
respects improper to remain upon the journal, they may be ordered 
to be expunged.^ 



Section V. Of some Usages and Methods in the Taking op 
Questions, which are peculiar to this Country. 

1821. Instead of taking the question, in the first instance, by the 
voices, as ascertained in a preceding section, a method, very com- 
monly practised in this country, particularly in the Eastern States, 
is that already described in a former part,^ by the show of hands, in 
which the speaker decides by the eye, which party makes the 
greater show, and, according to the result, declares that it is or is 
not a vote, so that the ayes or noes have it. There is no parlia- 
mentary difference between this and the former mode ; they may 
be both employed indifferently. 

1822. If the speaker's decision is doubted or questioned, then 
he is to ascertain, in such manner as he may think proper, or as 
may be provided by the rules and orders, the members voting on 
each side respectively, and announce the result. 

1823. The method of taking the question by yeas and nays in 
the manner already described,^ does not make one step of a series, 
but is a substantive motion, which is not resorted to as a matter of 
course, but may be moved for as a substitute for any or aU the 
others. 

1824. In taking a question in this manner, the clerk calls over 
the names of the members, as they stand arranged on the roll of the 



> Lords' Jour. XLH. 82 ; May, 280. Protests » Ante, § 403. 
are in partial use with us. See ante, § 410. ' See ante, § 407. 



708 LEGISLATIVE ASSEMBLIES. [PaRT VI 

house, and notes the answer of each ; he then calls over the names 
of those who have voted, first those m the affirmative, and then 
those in the negative, in order that members may see that their 
votes are correctly recorded ; he then calls the names of the absen- 
tees, and of such members present, as may have then* names sug- 
gested, or may themselves suggest their own names, to him, for that 
purpose, and having completed the call he proceeds to ascertain the 
numbers, and hands them to the speaker, "who thereupon gives his 
casting, or other vote, if he votes at all, and announces the decision 
of the house. 

1825. The point of time, to which the right of voting is referred, 
as above stated, according to the common parliamentary law, is the 
being in the house at the time the question is put, and this is the 
point of time, unless otherwise regulated in each assembly by a 
special rule. In the house of representatives of the United States, 
the general rule requires members to be present within the bar of 
the house when the question is put ; but when the yeas and nays 
are taken, and any member' asks leave to vote, the speaker is 
directed to inquire of him whether he was within the bar when his 
name was called. Until the calling of the roll is completed, and 
the decision of the house announced, members have a right to be 
called again and change their votes, and during this period of time, 
also, absent members, if allowed, as they may be, if no one objects, 
come in and vote with the others. If they do not apply until after- 
wards, they can only be permitted to record thek votes by leave of 
the house, on motion and vote, in the ordinary manner. The same 
rule appHes to other votes, which by the orders of the house are not 
receivable. Votes, accidentally omitted, may be entered at any 
time. 



CHAPTER THIRD. 

OF THE QUESTION THUS TAKEN. 

1826. Every question, which is propounded to a legislative 
assembly, for its determination, and voted upon in any of the man- 
ners above described, receives its decision according to the prepon- 
derance of the votes, which, unless some other rule is expresplv 



Chap. III.] questions taken. 709 

prescribed, as there usually is in each assembly, in reference to par- 
ticular questions, is ordinarily effected by a majority. In those 
cases where the rules or customs of any assembly allow a vote to 
remain on an equal division, the decision, as neither side prepon- 
derates, is necessarily in the negative. In many cases, it is pro- 
vided, either by a constitutional requisition, or by rule, that 
particular questions, in order to prevail, shall require more, or 
admit of less, than the ordinary majority in their favor. 

1827. Where more than the ordinary majority is required, as it 
is, for example, under most of our constitutions, to take the initia- 
tory steps, by passing resolutions for that purpose, for their amend- 
ment, and for the passing of certain classes of bills ; all questions for 
amending such resolutions and bills, except amendments from the 
other branch, and all incidental or preliminary questions thereon, 
short of the final question, are determinable by the ordinary 
majority.^ The same is the case where it is required by rule, that 
certain classes of questions shall not be adopted, unless a proportion 
greater than a majority is in their favor. All amendments of such 
questions require only a major vote.^ 

1828. According to the practice in our legislative assemblies, 
therein agreeing with the ancient rule and practice of the house of 
commons,'^ a member may change his vote, after he has once given 
it, provided he does so, by communicating the change to the tellers, 
if the vote is taken in that manner, before they announce the result,* 
or, if taken by yeas and nays, have his name called again before 
the decision of the assembly is announced, though the numbers may 
be declared.'' The same principle seems applicable to oral suffrage 
and all other forms of voting,^ except by ballot. 

1829. When the numbers on the one side and on the other of 
the question, are thus ascertained, and the speaker's casting vote 
given, if necessary,'^ the decision of the assembly is thereupon 
announced accordingly, by the presiding officer, either in the affirm- 
ative or negative as the case may be, of the words of the motion. 
The decision, thus pronounced, is the judgment of the house, not 
only upon the proposition itself, but upon its equivalent.^ 



1 J. of S. III. 314; Lloyd's Deb. 11. 179; Sess. 357; Same, 29th Cong. 2d Sess. 494; 
J. of H. V. 160, 294; Same, VII. 531. Same, 31st Cong. 1st Sess. 1266; Cong. Globe, 

2 Cong. Globe, XVIII. 639; Same, VII. 131 ; VIII. 494, 531; Same, XI. 667; Same, XIII. 
Same, XIII. 503. 320; Same, XV. 529; Same, XVII. 572. 

8 May, 225 ; Comm. Jour. I. 303. e Cong. Globe, XXI. 186. 

* Cong. Globe, XXI. 186. i J. of H. 20th Cong. 2d Sess. 357. 

* J. of H. VII. 342; Same, 20th Cong. 2d 8 Cong. Globe, XI, 782. 

60 



710 LEGISLATIVE ASSEMBLIES. [PaET VL 

1830. Questions are said to be equivalent, when the negative of 
the one amounts to the affirmative of the other, and leaves no 
alternative.^ Thus, in amendments, which furnish the most fre- 
quent examples of equivalent questions, the negative of striking 
out certain words amounts to the affirmative of agreeing to the 
same words.^ So, on a motion to agree or disagree ^dth the other 
branch in its amendments of a biU, a vote in the affirmative, on 
either of these motions, inasmuch, as on either the amendments in 
question may be amended, is exactly the equivalent of a negative 
of the other, and no alternative remains.^ So, on a motion to 
recede from a disagreement with an amendment of the other 
branch, it has been held, in congress, that a vote in the affirmative 
is equivalent to an agreement to the amendment ; * and that a vote 
in the negative of the same question is equivalent to a vote to 
insist on the disagreement.^ So, if a motion is made to disagree 
to or reject an amendment reported by a committee of the whole 
house, and this motion passes in the negative, the decision is 
equivalent to an agreement to the amendment.^ So, where an 
amendment of the other branch was referred to a committee of the 
whole house, who reported their disagreement thereto, and on the 
question to concur in this report it was decided in the negative, the 
non-concurrence was held to be equivalent to a vote to agree to the 
amendment." 

1831. So, if the question, on passing a biU to its next regular 
stage, is decided in the negative, such vote is equivalent to a rejec- 
tion, and may be so entered by the clerk ; ^ the same effect is pro- 
duced, when the enacting clause,^ or the whole biiy^ is struck out ; 
and, on the other hand, if, on a question of rejection a bill is 
retained, this vote may be considered as equivalent to a vote pass- 
ing a biU to its next stage.^^ 

1&32. In whatever way, and at whatever time, whether by allow- 
ance or disallowance of votes as stated in the next chapter, or ia 
some other manner, the apparent numbers of the members, voting 
on a division, are changed, thereby changing the result of the vote, 
not only are the changes of the individual votes to be noted on the 



1 Jefferson's ManuaJ, Sec. XXXVm. 5 Cong. Globe, X. 407. 

2 Jefferson's Manual, Sec. XXXVIH. « J. of H. 21st Cong. 1st Sess. 292, 610. 
8 Jefferson's Manual, Sec. XXXVIIL ' J. of H. 17th Cong. 2d Sess. 391. 

< Reg. of Deb. IIL Part 2, 2647. This point 8 See the Journals of the H. of R. generally 

has been other-ndse decided. J. of H. 20th » J. of H. 21st Cong. 1st Sess. 493. 

Cong. 1st Sess. 695; Same, 27th Cong. 1st i" J. of H. VIII. 236, 540. 

Sess. 444, 445. " Jefferson's Manual, Sec. XXX Vm. 



Chap. IV.] disallowance or addition of votes. 711 

journal, but a change of the decision takes place, as of the day on 
which the voting occurred, and with the same effect as if it had 
been correctly announced on that day.^ AU subsequent proceed- 
ings in reference to the vote in question, and predicated upon the 
idea that it was correctly declared, are, of course, whoUy nuU and 
ineffectual^ 



CHAPTER FOURTH. 

OF THE DISALLOWANCE OR ADDITION OF VOTES. 

1833. It has been seen, that, whilst a division is taking place, it 
is within the functions of the speaker to compel a member to vote, 
or to prevent him from voting, without debate or delay ; his deter- 
mination, in this respect, being subject to the future revision of the 
house. So, when a member has actually voted, if exception is 
taken to his vote at any time before the members on the division 
have been declared by the speaker, although reported by the tellers 
to him, the case is in like manner within the speaker's summary 
jurisdiction, as to all matters and questions arising in the course 
of a division. When, however, the speaker has declared the respec- 
tive numbers, which are the result of any division, the question is 
thereby resolved according to such declaration ; and the numbers 
can only be altered by the house, upon motion and vote, in the 
ordinary manner of proceeding, resolving that certain votes be 
allowed or disallowed. Cases are frequent, in which votes 
received have been disallowed ; very rare, in which votes refused 
have been allowed. 

1 J. of H. 20th Cong. 2d Sess. 357; Same, Globe, IX. 17; Same, XI. 925, 926; Same, 

26th Cong. 2d Sess. 32; Same, 27th Cong. 1st XXIL 350; Same, XIII. 315; Same, XV. 866; 

Sess. 447 ; Same, 30th Cong. 1st Sess. 1079, Same, XXI. 1786. 

1080, 1081; Same, 175, 176; Same, 31st Cong. « J. of H. 30th Cong. 1st Sess. 1079, 1080, 

1st Sess. 1436; Same, 2d Sess. 171; Reg. of 1081; Reg. of Deb. XL Part 2, 1521, 1622, 

Deb. XL Part 2, 1521, 1522, 1523; Cong. 1623; Cong. Globe, XXI. 1786. 



712 LEGISLATIVE ASSEMBLIES. [PaET VL 



Sectioi^ I. Of the Allotvaxce of Votes eefused. 

1834. There seems no good reason, why votes, improperly re- 
fused, should not be afterguards allowed on motion, as weU as that 
votes improperly received should be disallowed. One case only, 
however, has been noticed, in which a proceeding analogous to 
the allowance of votes improperly refused took place. January 
10th, 1647, a division having taken place, and the tellers being 
unable to agree upon the numbers, the house divided again, and 
all who were not present at the first telling were required to with- 
dra^v. The tellers reported the numbers to be thu-ty-thi'ee on each 
side ; one member, who was present and told on the fii'st division, 
but did not come in upon the second telling, until the numbers 
were given in and reported by the speaker, T\-as desned to be count- 
ed ; a debate arose, whether he should or not, as he did not come 
in mitil after the report was made ; and the house di^dded again on 
this question; but, before it was told, the noes yielded, and that 
member being added to the yeas, made their number thuiy-four.^ 

1835. In the folloMdng case, it seems to be doubtful whether 
the proceeding was intended for the purpose of compelling mem- 
bers to vote, or of allowing votes not given to be counted if neces- 
sary for the decision of the question : — On the 28th of INIay, 1623, 
it is entered in the journal of the commons, that the bill for York 
house being thirdly read, " after a very long debate, the question 
being put, and the voice doubtful, the house divided," and tellers 
were appointed. " Seven being returned into the committee 
chamber, and refusing to give voice one way or the other, were 
sent for, and their names taken, and the resolution stayed till those 
which had gone out, returned. With the noes 143, with the yeas, 
168, 25 difference." 2 



Section II. Of the Disallowance of Votes eeceived. 

1836. The disallowance of votes usually takes place, when, after 
the declaration of the numbers by the speaker, it is discovered that 
certain members who voted w^ere not present when the question 
was put, or were so interested in the question, that they ought to 
have ^T.thdra^Ti from the house, 

1 Hans. Pari. Hist. HI. 4S, 49. 2 Comm. Jour. I. 714. 



Chap. IV.] disallowance of votes. 713 

1837. I. It has already been seen, that when it is ascertained 
that members have improperly voted, on a division, who were not 
in the house when the question was put, if this takes place, before 
the numbers are declared by the speaker, such votes are disallowed 
by him at once, and not included in the numbers declared. If the 
fact is not ascertained until after the numbers are declared, it is 
then necessary, "that there should be a motion and vote of the house 
for their disallowance ; and this may take place, for any thing that 
appears to the contrary, at any time during the session, and has in 
fact taken place after the lapse of several days from the time the 
votes were given.^ 

1838. II. Votes have also been disallowed, after the numbers 
have been declared, on the ground, that the members voting were 
interested in the question ; and, in reference to this proceeding, there 
is no time limited within which it must take place. 

1839. There seems to be very little doubt or difficulty, commonly, 
in determining what interest disqualifies a member from voting, or 
would give rise to the disallowing of votes if given. The case of 
members voting on questions concerning their own pay is an ex- 
ception from which no principle can properly be derived. It has 
invariably been decided, of course, that this was not such an interest 
as would disqualify ; either because it was a case of necessity, or 
because all the members were equally concerned in interest.^ Five 
leading cases have occurred in the British parliament at different 
periods, which embody the law on this subject, and deserve to be 
mentioned accordingly. 

1840. The first of these cases occurred on the 12th of June, 1604, 
and is thus recorded : — A bill for the establishment of divers man- 
ors and lands of Edward, late duke of Somerset, being offered to 
the question of commitment by Mr. Speaker : " Moved, that Mr. 
Seymour, a member of the house, and a party, might go forth, 
during the debate; which was conceived to be agreeable with 
former order and precedent in like cases, and was so ordered." "And 
Mr. Seymour went presently forth at the door." ^ 

1841. The second of these cases, which occurred on the 4th of 
February, 1664, is thus recorded : — A bill for settling the differ- 
ences between Great and Little Yarmouth, being reported by the 
committee with amendments which were read and agreed to, the 
question being put, that the biU with the amendments, be en- 

1 May, 267, 268. 3 Comm. Jour. L 237. 

2 Coug. Globe, IX. 208. 

60* 



714 LEGISLATIVE ASSEMBLIES. [PaRT VI. 

grossed, the house was divided, and the yeas went out. The yeas 
were eighty-one in number, and the noes eighty. " But Su' Robert 
Paston, a member of the house appearing to be somewhat concerned 
in point of interest ; and having presented a bill with his petition 
thereto annexed, and being numbered with the yeas, and the ques- 
tion thereupon arising, whether, by the orders of the house he 
should not have withdrawn ; and Su' Robert to avoid engaging 
the house in a debate, freely offered to withdraw ; and that no 
advantage should be had by his being told with the yeas ; and the 
voices being then equal, Mr. Speaker declared himself to be with 
the yeas : and so it was resolved in the affirmative, that the said 
biU be engrossed." ^ 

1842. The house of commons having determined in December, 
1796, that towards raising the supply granted for the current year, 
the sum of eighteen millions of pounds should be raised by annui- 
ties, passed an act for that purpose, by which it was provided that 
any contributor to the said sum should be entitled, for every one 
hundred pounds contributed and paid, to the principal sum of one 
hundred and twelve pounds and ten shiUings in annuities, at the 
rate of 5 per cent, a year, irredeemable unless with the consent of 
the proprietors thereof, until the expu'ation of three years from the 
period at which the existing annuities, at the rate of 5 per cent, 
should be redeemed and paid off, or the interest payable thereon 
reduced.^ The subscribers to the loan, having very soon discov- 
ered that they were liable to incur a considerable loss from the sub- 
sequent depression of the funds, the minister moved, on the 30th of 
May following, that they should be allowed a further sum of five 
pounds in every hundred, which would amount in the whole to an 
annuity of sixty or seventy thousand pounds.^ The speaker, being 
appealed to, said, that in his opinion, the subscribers to the loan 
had a direct pecuniary interest in the measure in question, which 
would disquaUfy them from voting thereon, unless they declared 
their intention not to profit by the bonus proposed to be given to 
them. The resolution was opposed, on the ground, that the loan 
was a speculation, on which the subscribers entered with the usual 
expectation of gain or loss, as on any other speculation, and was 
carried in the affirmative by thirty-six to thirty-five votes. Motions 
were thereupon made that the votes of two of the members whose 
names appeared on the list of subscribers, and who had voted foi 

1 Comm. Jour. VIH. 594. 3 Ann. Reg. Part XXXIX. 143. 

s Comm. Jour. LII. 181. 



Chap. IV.] disallowance of votes. 715 

the resolution should be disallowed. The members in question 
were thereupon heard in their defence, and both having formally 
disclaimed all intention of profiting by the measure, which the 
speaker was of opinion was sufficient to quahfy them- as voters, 
whether their determination was expressed before or after the 
division, the motions to disallow their votes were decided in the 
negative.^ This is known as the case of the subscribers to the 
loyalty loan. 

1843. The fourth of these cases, which occurred on the 4th of 
July, 1800, arose out of a bill to incorporate " The London Com- 
pany for the manufacture of flour, meal, and bread." That bill 
being in its third reading, and variously amended, a further 
amendment was proposed to be made to the bill by leaving out 
the word " ten," in order to insert the word " five " instead thereof, 
in that part of the biQ which declares that no dividend of the 
profits of the said undertaking shall exceed in the whole ten 
pounds per centum per annum on the amount of the sum subscribed, 
and the question being put, that the word ten stand part of the 
bill, the house divided, and it was resolved in the affirmative, forty- 
seven yeas to sixteen noes. Notice being then taken that a mem- 
ber who voted in the last question with the yeas, was named in 
the biU as one of the persons who had agreed to become a subscri- 
ber to the said undertaking, and a motion being made, and the 
question proposed, that the vote of such member be disallowed, 
he was heard in his place, and stated that he had paid no money 
towards this plan, but that he intended to subscribe to it, conceiv- 
ing it would be for the public benefit, and then withdraMdng, 
it was resolved that his vote be disallowed. Similar proceedings 
took place in regard to four other members, who all agreed that 
the house having come to the resolution above mentioned, they 
would make no objection to the disallowance of their votes, and 
their votes were disallowed accordingly.^ 

1844. The last of the cases alluded to above was that of the 
gold coin bill, pending in parliament in 1811, and which was as 
foUows. An act passed in the lords, " for making more effectual 
provision for preventing the current gold coin of the realm, from be- 
ing paid or accepted for a greater value than the current value of 
such coin ; for preventing any note or notes of the governor and 
eompany of the Bank of England from being received for any 

1 Comm. Jour. LIL 632; Pari. Reg. XLVIL 2 Coram. Jour. LV. 732. 
684, 687 



716 LEGISLATIVE ASSEMBLIES. [PaKT VI. 

smaller sum, than the sum therein specified ; and for staying pro- 
ceedings upon any distress by tender of such note." This bill, 
which was introduced to remedy some of the evils grovdng out of 
a suspension of specie payments and a depreciation of paper- 
money, was sent to the commons for concm-rence, and was there 
read a first and second time. A motion was thereupon made re- 
citing that it appears to the house that in consequence of an act for 
protecting the Bank of England from payment of its lawful credi- 
tors in specie, the profits of that corporation have increased to an 
enormous degree ; that besides increasing their dividend upon their 
capital stock fi-om seven to ten per cent., they have at different 
times divided amongst themselves upwards of six millions of 
money ; and that in addition to such profit, the price of their stock 
has by the advantages of increased issues of paper and non-pay- 
ment of creditors been increased fi'om one hundred and eighteen 
pounds a hundred, to two hundred and thu-ty-six ; that under such 
cu'cumstances, a bill is now pending in this house, giving a fixed 
legal value in the coin of these realms to the paper to be issued by 
the Bank of England, however indefinite such issues may be, and 
protected as the bank is fi-om payment of its creditors in specie, by 
means whereof the issues and the profits of the bank may still be 
further and greatly increased ; that various members of this house, 
are members likewise of the corporation of the Bank of England, 
and proprietors of bank-stock ; and that it is the opinion of this 
house, that such members have a direct interest in passing this bill 
into a law, and that their votes in favor of the same ought to be 
disallowed. This motion was decided in the negative.^ The 
speaker (Mr. Addington) in giving his opinion, said : " The rule was 
very plain. K they opened their jom-nals, they would find it estab- 
lished two hundred years ago, and then spoken of as an ancient 
practice, that a personal interest in a question disquahfied a mem- 
ber from voting. But this interest, it should be further under- 
stood, must be a direct pecuniary interest, separately belonging 
to the persons whose votes were questioned, not in common 
with the rest of his majesty's subjects or on a matter of state pol- 
icy. So it was, that on the canal biU, a person whose name is 
down as a subscriber could not vote." ^ 

1845. Another case, which may be mentioned under this head, 
occurred in the house of representatives of Massachusetts, on the 
19th of February, 1840, while Mr. Speaker Winthrop presided in 

1 Comm. Jour. LXXVI. 463. 2 Hans. (1), XX. 1011, 



Chap. IV.] disallowance of votes. 717 

that house. A bill to increase the capital stock of the Boston and 
Sandwich Glass Company being under consideration, it was 
moved to amend the same by making the stockholders for the time 
being liable in their private capacity for the debts of ihe corpora- 
tion, and this amendment having been rejected, a motion was 
made to disallow the votes of three members who were stockholders 
in the corporation, and voted against the amendment. Mr. Speaker 
Winthrop, adverting to two previous decisions of his own, first, 
that bank directors who were members might be on the commit- 
tee on the memorial of the banks on the subject of the suspension 
of specie payments ; and second, that members who were stockhold- 
ers in the Western Railroad Corporation could not be excluded 
from voting in favor of the biU for granting the credit of the State 
in aid of the enterprise in which that corporation was engaged, de- 
cided in an elaborate opinion, which was sustained by the house 
on appeal that the votes of such stockholders could not be ex- 
cluded. 

1846. It seems from the foregoing and other cases, first, that 
when a question is pending, the right or duty of a member to vote 
on that question may be brought forward by himself or any other 
member and settled by the house before that question is taken ; 
secondly, that if any question of this kind is made after the division 
has commenced and before the decision of the house is announced, 
the speaker is to decide it peremptorily as a question of order, sub- 
ject to the future revision of the house ; third, that parties named in 
the bill, either individually or collectively, are excluded from voting 
thereon, whatever their interest may be ; fourth, that members who 
are not named as parties must be shown to have a direct pecuniary 
interest in a bill, in order to preclude them from voting upon it ; 
fifth, that if this interest is one which can be disclaimed, it is suffi- 
cient to do so either before or after a division, in order to justify 
voting on the question ; and sixth, that the interest of a member, 
which wlU exclude him from voting, must be separate and distinct, 
and not merely enjoyed by him in common with his fellow-citi- 
zens. 

1847. Since the foregoing decisions in the house of commons 
have been pronounced, others have taken place in that body, which 
confirm the principles stated in the preceding paragraphs.^ Decis- 
ions have also occurred there, that it is not sufficient to disqualify 
a member from voting against a biU, that he has a direct pecuniary 

1 May, 281, 282, 283, 284. 



718 LEaiSLATIVB ASSEMBLIES. [PaRT VL 

interest in a rival undertaking.^ In two of these cases, the member, 
whose vote was in question, was a proprietor in a similar company 
already established.^ In another case, which was the second read- 
ing of a bUl for the incorporation of a railway company, an objec- 
tion was taken to one of the tellers for the noes, as being a land- 
holder upon the Kne, whose property would be injured ; but a mo- 
tion for disallowing his vote was withdrawn.^ 

1848. When any question is made, as to the disallowance of a 
vote, the member himself is inquired of as to the fact alleged as 
the ground of the disallowance ; and, after the motion has been 
made, and before it is proposed, he should be heard in his place, 
and then withdraw. 

1849. If, in consequence of the allowance or disallowance of 
votes, the majority is thereby changed, and the decision of the 
house is reversed, aU the subsequent proceedings become null and 
void.* 

1 Comm. Jour. LXXX. 110; Same, CI. 808; « Comm. Jour. C. 486. 
Same, C. 486. * Ante, \ 1882- 

» Comm. Jour. LXXX. 110; Same, CI. 808. 



LAW AND PRACTICE 



ov 



LEGISLATIVE ASSEMBLIES. 



PAET SEVENTH. 

OF COMMITTEES AND THEIR FUNCTIONS. 

(719) 



LAW AND PRACTICE 



LEGISLATIVE ASSEMBLIES. 



PART SEYENTH. 

OF COMMITTEES AND THEIR FUNCTIONS. 



1850. Committees form a most important, and, in modern times, 
an indispensable, part of the miachinery of parliamentary procedure. 
They are of three kinds, namely, select committees, consisting of a 
small number of members specially named, committees of the 
whole, consisting of all the members of the house, and joint com- 
mittees which are composed of members of each house sitting and 
acting together. 

1851. Select committees are appointed for a great variety of 
purposes, which it would be impossible to enumerate in detail ; but, 
which may be all embraced under the three general heads of ob- 
taining information for the use of the house, as to matters-of-fact ; 
of performing acts required by the house to be done ; and of form- 
ing and expressing opinions on matters referred to their considera- 
tion. In other words, the functions of select committees, — as of 
the house itself, — are to inquire, to think, and to act.^ By means 
of committees of this description, a legislative body consisting of 
many members is enabled to do many things, which, from its num- 
bers, it would otherwise be unable to do ; to accomplish a much 

1 Committees are sometimes said to be the poses, also, they are its head and hands, 
eyes and ears of the house : for certain pur- 

61 (721) 



722 LE&ISLATH'E ASSEMBLIES. [PaET YIL 

greater quantity of business, by distributing it among the members, 
than could possibly be effected; if the yi'hole body w"ere obliged to 
devote itself to each particular subject; and to proceed, in the pre- 
limuiary stages of a measure, -^-ith that degree of freedom, which 
is essential to its being properly matured. 

1852. Committees of the whole house, being composed of all 
the members, possess none of the advantages which result from the 
emplopuent of a small niunber of persons, selected ^dth express 
reference to the particular purpose in view ; and, at the present day, 
the principal advantage, which appears to result from the consider- 
ation of a subject in a committee of the whole house, rather than 
in the house itself, consists in the liberty which every member en- 
joys in such a committee of speaking more than once to the same 
question. 

1853. Select committees, and committees of the whole, though 
in many respects governed by the same rules of proceeding, yet 
differ fi:om one another in so many essential particulars, that it will 
be necessary to consider them separately. Joint committees, though 
presenting very little that is peculiar, -^-ill constitute the matter of a 
distinct division of this part. 



LAW AND PRACTICE 



LEGISLATIVE ASSEMBLIES. 



PART SEVENTH. 

OF COMMITTEES AND THEIR FUNCTIONS. 



FIRST DIVISION. 

SELECT COMMITTEES. 

1854. The subject of this division is considered in the eight 
following chapters : — I. Of the different kinds of select commit- 
tees; II. Of their appointment; III. Of their power and author- 
ity ; IV. Of their forms of proceeding ; V. Of instructions to 
committees ; VI. Of the intermediate proceedings in the house be- 
tween the appointment of the committee, and previous to its 
report ; VII. Of the report ; VIII. Of making the report and of 
proceedings thereon. 

(723) 



724 LEGISLATIVE ASSEMBLIES. [PaRT VIl. 

CHAPTER FIRST. 

OF THE DIFrERENT KESTDS OF SELECT COMMITTEES. 

1855. All committees, which are composed of a certain number 
of members, specially named, or of certain classes of members, as, 
all the lawyers, or the members for certain counties, the individual 
not being specially named, are select committees, as distinguished 
from those w^hich consist of the whole house. They are, however, 
known by different appellations, having reference either to the sub- 
jects committed to them, or to the peculiar powers vdth which 
they are invested, or to the constitution of the committee. 

1856. I. A committee, which is appointed beforehand, for the 
consideration of all subjects of a particular class, arising in the 
course of the session, is denominated a standing committee. The 
committee of privileges, and that on printing, in the house of com- 
mons, are standing committees. By the system of rules and orders 
which prevail in our legislative assemblies, it is usually provided 
that each one shall be assisted in its business, by one or more 
standing committees, corresponding in number to the size and 
importance of each assembly. They vary greatly, of course, in 
different legislative bodies. Li the house of representatives in 
congress, the rules and orders provide for the appointment of 
twenty-eight standing conmiittees at the commencement of each 
session, and of six others at the commencement of the first session, 
to continue during the whole of the ensuing congress. 

1857. II. The term, select committee, is usually applied to des- 
ignate a committee appointed to consider a particular subject, on 
the occurrence of the occasion for its appointment, as where a 
committee is appointed to consider a petition or memorial, or to 
make inquiries into a particular subject. Select committees are 
sometimes turned into standing committees by subsequent ref- 
erences to them, relating to the same subject. 

1858. III. When a select committee is appointed of certain 
members specially named, with authority to any others, who think 
proper, to participate in the business, — as where certain members 
are named, and it is then added, that all who come are to have 
voices, — the committee is called an open committee. A commit- 
tee of this description might, therefore, if the whole house should 



Chap. IL] appointment of select committees. 725 

see fit to attend, be equivalent to a committee of the whole, as to 
the number of its members. But it would differ from a committee 
of the whole in this respect, that, in order to enable the committee 
to proceed, it would be necessary that all the members specially 
named, or as many of them as were fixed for the quorum of the 
committee, should attend. This form of appointment, formerly in 
very general use, has been resorted to but seldom, of late years, on 
account of the great inconveniences to which the irregular attend- 
ance of members on committees so constituted ^ gave rise. 

1859. IV. A secret committee, or, as it is generally called, a 
committee of secrecy, is a select committee, which, by the express 
direction of the house, conducts all its proceedings in secret. 

1860. V. Besides the above, which are the more general appel- 
lations given to committees, the term previous is sometimes applied 
to a committee, in order to distinguish it from the committee to 
which a bill is referred in the regular course of proceeding ; ^ the 
phrase, above stairs, is used to denote a select committee as distin- 
guished from a committee of the whole ; ^ and a committee to 
investigate any subject, and report the facts to the house, especially 
if the subject relates to the conduct of any person in a public office, 
is usually called a committee of inquiry.* It is usual, also, to des- 
ignate select committees by names derived from the subjects re- 
ferred to them ; as, for example, the select committee on ship- 
wrecks,^ or on the working of the poor-law system in Ireland.*^ 



CHAPTER SECOND. 

APPOINTMENT OF SELECT COMMITTEES. 

1861. In order to the appointment of a select committee, it is 
necessary, in the first place, that the house should resolve, on mo- 
tion, that a select committee be appointed for the purpose in view. 

1 Pari. Reg. XXVII. 13, 14; Same, XLI. 384. * Hats. III. 36, note; Hans. (3), XXX. 795, 
a Pari. Reg. XVIII. 167, 169, 171. 796, 799, 1452; Same, (1), XXIX. 637. 

3 Hans. (1), XXVIII. 485; Pari. Reg. XXVH. & Hans. (3), LXVII. 117. 
12. «Hans. (3), LXXIV. 1188, 1200; May 14, 

1844. 

61* 



726 LEGISLATIVE ASSEMBLIES. [PaRT VIL 

Having come to this resolution, the next thing in order is to fix 
upon the number of which the committee shall consist ; ^ then, the 
mode in which the committee shall be appointed ; and, lastly, the 
time of its appointment. These particulars may all be embraced 
in the motion for the committee ; but it is a more orderly proceed- 
ing to move them separately; or, at all events, to move for the 
committee in a distmct motion, for if this fails, the others are of 
course unnecessary ; and, they may be all moved immediately in 
their order, and the committee appointed, unless there is some 
order, resolution, or vote, with which such a proceeding would be 
inconsistent. How far any such restrictions exist will be presently 
seen. The motion for the committee, being debated and decided 
like any other motion, requires no further notice ; the points proper 
to be considered are, first, as to who may be of a committee ; 
second, as to the number of which a committee is to consist ; tliird, 
as to the time ; and, fourth, as to the manner of the appointment 
of a committee. Where the rules and orders of any particular 
assembly provide for the appointment of standing committees, such 
appointments ought regularly to be preceded by a resolution to that 
effect. 

Section I. As to who may be of a Comjuttee. 

1862. It appears to have been an ancient rule of the house of 
commons, that no member who spoke against the body or sub- 
stance of any biU, or other thing proposed in the house, should be of 
a committee for that business ; ^ but this rule, so far as it relates to 
the appointment of committees by name, must necessarily have 
been subordinate to the convenience of the house ; and, in fact, it 
appears to have been disregarded, whenever the convenience of the 
house required the appointment of members so situated.^ The 
rule seems also quite as much intended to operate upon the mem- 
bers themselves, and to restrain them from taking a part in the 
business of committees to which they are opposed, under the gen- 
eral provision, that all who come to the committee have voices , 
though they might, without impropriety, be present at the com- 
mittee.* 

1863. It is an established rule of parliamentary law, that every 
member who is returned of record, is immediately ehgible to ap- 

1 Hans. (1), XXVI. 404. 3 Comm. Jour. H. 14. 

2 Comm. Jour. H. 14. * Grev, VI. 373. 



Chap. 11.] appointment of select committees. 727 

pointment on a committee, even before he has been quaHfied by- 
taking the oaths at the clerk's table ; that, whilst he continues a 
member, in fact, his eligibility remains, notwithstanding he may 
have declared his intention to secede from the house, or may be 
opposed to the matter referred to the committee ; and that he can- 
not discharge himself from his obligation as a member to obey the 
commands of the house, by declining or refusing to serve on the 
committee, or be discharged from the committee in any other man- 
ner than by a vote of the house for that purpose. When members 
of a committee die or resign, or otherwise cease to be members of 
the house, or they have a right to decline serving, or are excused by 
the house, at their own request or otherwise from serving on the 
committee, their places on the same are to be filled up, on motion 
and resolution for the purpose, in the same manner that the com- 
mittee was originally appointed. 

1864. Members who are personally interested in the matter re- 
ferred to the consideration of a committee, ought not, of course, to 
be appointed. If appointed, they should take no part in the pro- 
ceedings ; and should, as soon as possible, be discharged from fur- 
ther attendance, and others substituted in their places. 



Section II. As to the Number of Members. 

1865. The number, of which a select committee of the house of 
commons ought regularly to consist, in the earher periods of par- 
liamentary history, does not appear to have been fixed by any 
general rule. As many members were named as the house thought 
proper ; and this appears to have been the only limit. It is said 
by Rushworth, that the grand committee for privileges and elections 
" had wont to consist of forty members ; " but that, on the occasion 
of which he was then writing, the clerk, Mr. Elsing, having inad- 
vertently taken down forty-seven names, the house refused to 
reduce the committee to forty, and allowed the whole to stand. In 
the statement of forty as the usual number of which the committee 
of privileges and elections had been wont to consist, the learned 
collector appears to have been mistaken ; for, in several of the par- 
liaments of James I. and Charles I., the committees of privileges 
consisted of more than double that number. In later times, it is 
Baid that the number of members for a select committee was fixed 
at twenty-one. If so, it was a rule frequently departed from ; for 



728 LEGISLATIVE ASSEMBLIES. [PaUT VII. 

the journals contain abundant examples of committees composed 
of a larger, and often of a smaller, number of members. 

1856. It is now settled in the house of commons, by a rule 
recently adopted, " that no select committees shall, ^vithout previous 
leave obtained of the house, consist of more than fifteen members ; 
that such leave shaU not be moved for ^vithout notice ; and that in 
the case of members proposed to be added or substituted, after the 
first appointment of the committee, the notice shall include the 
names of the members proposed to be added or substituted." ^ 

1867. Previous to the adoption of this rule, members might be 
added at any time to a select committee, unless the number of 
which it was to consist had been previously fix:ed by a resolution 
of the house ; in which case, the number could not be increased, 
though vacancies occurring in the committee might be filled, and 
new members might be substituted in the place of others discharged 
fi-om further attendance.^ The number of every committee is now 
fixed either expressly by the resolution of the house, or tacitly by 
the rule. Li our legislative assembfies, it is usual to provide before- 
hand, by a special rule, unless otherwise du-ected in a particular 
case, of what number such committees shall consist. K the num- 
ber is not thus regulated beforehand, it is to be fix:ed by the house 
itself, on motion and vote, immediately after the resolution for the 
appointment of the committee.^ 

SECTIOlSr III. As TO THE TiME OF APPOINTMENT. 

1868. A rule, recently adopted in the house of commons, pro- 
vides " that every member intending to propose a select committee 
shaU, one day next before the nomination of such committee, place 
on the notices the names of the members intended to be proposed 
by him to be members of such committee." * Before the existence 
of this rule, the members of a select committee might be moved 
for, and the committee appointed, immediately upon the passing of 
the resolution for its appointment. Now this can only be done, in 
cases coming within the rule, provided notice has been given of the 
names intended to be proposed on the committee, one day at least 
previous to the resolution for its appointment. 

1869. This rule, like all others of the same character, is neces- 

1 May, 297; Comm. Jour. XCL 30; Same ^ Cong. Globe, XII. 240. 
KCn. 8. * Comm. Jour. XCUI. 221: May, 297. 

a Hans. (1), XXXVI. 899, 906. 



Chap. JL] appointment of select committees. 729 

sarily subject to an exception in cases in which, the privileges of 
the house being concerned, delay is not admissible. 



Section IV. As to the Manner of Appointment of a Select 

Committee. 

1870. In the selection of members for service on committees, 
there seem to be four principal methods, which may be adopted, 
either simply, or in some modified form, namely, /rs^, the names of 
members to compose the committee may be moved and put to the 
question, in the same manner with other propositions ; second, the 
committee may be chosen by ballot ; third, it may be appointed by 
the speaker, or other members selected for the purpose, either abso- 
lutely, or subject to the approval or rejection of the house ; and 
fourth, the members of the committee may be designated by lot. 
The last of these methods was formerly practised in a modified 
form, in the appointment of election committees, but is now laid 
aside. The third mode is applicable in the British parliament, par- 
ticularly to the appointment of election committees as now consti- 
tuted, and of committees on private bills ; and in this country, 
usually to all select and standing committees. These three, being 
the methods most usually practised, will now be described. Besides 
these, there is the method sometimes practised of oral or viva voce 
suf&age, which will be shortly described. 

Article I. Appointment of a Select Committee on Motion. 

1871. When no other method has been resolved on by the house, 
the regular mode for the appointment of a committee is, by moving 
the names of the members to compose it, and putting them to the 
question, in the ordinary course of proceeding. Anciently, the 
practice seems to have been, for the members of the house to call 
out names for the committee, and for the clerk to take them down 
as they struck his ear, without any formal motion or question, until 
the requisite number had been obtained. 

1872. It afterwards became the established practice for the 
member, upon whose motion a committee had been ordered, to 
move the names of the members to compose it, — being, of course, 
of his own selection ; his own name being among them, and per- 
haps the first named on the list. If he felt any delicacy in moving 
his own name, the motion might be made by some friend ; as, on 



730 LEGISLATIVE ASSEMBLIES. [PaET VIL 

the occasion of the appointment of the committee to prepare 
articles of impeachment against Lord Melville, which had been 
ordered on the motion of Mr. 'V^Tiitbread, that gentleman was first 
appointed one of the committee, on the motion of Lord Temple, 
and then on the motion of Mr. Whitbread, the other members of 
the committee (Lord Temple being one) were appointed.^ 

1873. When committees are appointed on motion, the practice 
is, for the member who moves the names to read over his hst in the 
first place, and then to move each of the names separately, — the 
form of the motion being, that such a member be of the com- 
mittee. On this motion it is competent for those opposed to the 
particular member named, not only to vote in the negative of the 
motion, but also to move an amendment of it by leaving out 
the name of the member moved, for the purpose of inserting that 
of some other member. So, those who are opposed to the appoint- 
ment of the committee may, on this motion, move an amendment 
by leaving out all except the first words of the motion, in order to 
insert a motion that the order of the day for the appointment of the 
committee be read, for the pm'pose of being discharged ; ^ or, an 
amendment may be moved, by leaving out all except the first words 
of the motion, in order to insert a motion for choosing the com- 
mittee by ballot.^ Where this method of appointing a committee 
is adopted, the members are necessarily chosen by absolute majori- 
ties. 

1874. The moving of the names of members to constitute a com- 
mittee, which is conceded by parliamentary usage to the member 
upon whose motion the committee has been granted, is, of course, a 
matter of courtesy, and not of right ; every other has the same 
right to move the committee ; and some one would doubtless be 
found to do so, if necessary to prevent the appointment of improper 
persons, or if the list made out and moved by the mover should be 
rejected by the house. 

1875. If the measure, in reference to which a committee has been 
ordered, should be taken out of the hands of the mover and his 
friends, who, in such an event, would no longer desne to proceed 
with the business, the moving of the committee devolves upon the 
successful party ; as, on the occasion of the defeat of the ministry, 
on the motion for an address in answer to the queen's speech, 



1 Hans. (1), V. 618. 3 Hans. (1), IV. 426, 430, 647, 648. 

2 Hans. (3), LXXIV. 1188, 1200; May 14, 
1844. 



Chap. IL] appointment of select committees. 731 

Aug. 1841, by the adoption of the amendment moved by the oppo- 
sition, lord John Russell suggested that the committee should be 
named by the honorable gentleman, who had moved the amend- 
ment, and, thereupon, Mr. Wortley moved the names of the mem- 
bers for the committee.^ 

1876. When a committee has been thus appointed, it may be 
afterwards enlarged, by the addition of other members appointed in 
the same manner ; ^ or members originally appointed may be dis- 
charged from further attendance ; ^ or members may be discharged 
and others appointed in their room.^ 

1877. In regard to the discharge of members from further attend- 
ance on a committee, which is the same thing in fact, as rescinding 
the order for their appointment; — though the house may undoubt- 
edly exercise such control over their own members as they may think 
proper ; — it was said by Mr. Speaker Manners Sutton, on a proposi- 
tion to discharge a member from a committee, on the ground that he 
could not attend, for the purpose of substituting another, " that he 
could not find any trace of such having been the practice ; he did not 
perceive that any member had been left out, except it was by abso- 
lute parliamentary disqualification, or physical impossibility of at- 
tendance ; as to any other disqualification of attendance, there was, 
so far as his knowledge extended, no account of any case having 
arisen." ^ Li Sir Joseph Jekyl's case, who was appointed on a 
committee, before he had taken the oaths, it was decided by the 
house, on a division, that he was not thereby disqualified from serv- 
ing on the committee, and the house accordingly refused to dis- 
charge him and substitute another ; ^ nor is it any disqualification 
of a member, that he dechnes serving;" or that he has declared his 
intention to secede from the house ; ^ or that he was a member of 
the administration, in which the abuses are alleged to have taken 
place, which it was the business of the committee to investigate.^ 
It is a compendious form of this mode of appointing a committee, 
for the house to resolve, on motion, that the committee consist of 
all the lawyers of the house,^'^ or of all the members who are of the 
privy council,^ 1 or of all the members for certain counties or places,^^ 

1 Hans. (3), LIX. 450. ^ Hans. (3), XLHI. 1230, 1234. 

2 Pari. Reg. XL. 462, 500, 501. 8 Parl. Reg. L 314. 

« May, 298. 9 Hans. (1), IV. 511, 517, 536. 

* Hans. (3), XLIH. 1230, 1234. lo Romilly, 303; Comm. Jour. L 326. 

» Hans. (1), XXXVH. 200, 201, 202, 203, " Comm. Jour. 169, 172. 
204. See also Cong. Globe, XV. 95, 124. 12 Comm. Jour. 326; Romilly, 303. See 

•Comm. Deb. VL 19, 20; Hans. (1), also J. of C. H. 269. 

XXXVH. 200, 201, 202, 203, 204. See also 
Coug. Globe, XXL 1464. 



732 LEGISLATIVE ASSEMBLIES, [PaET YIL 

or of all the members that have spoken, or that a select committee 
of a former session, or one which has akeady discharged its func- 
tions, be revived, for the purpose of constituting the committee.^ 
It is equally competent, of course, to constitute a part of the com- 
mittee in this manner ; ^ the residue being appointed in the usual 
way. Where a select committee is revived, if any of the members 
have vacated their seats, or have become disqualified, other mem- 
bers may be substituted in their places/^ 

1878. In the house of commons, certain rules have been lately 
introduced, which require that every member, intending to propose 
a select committee, or to move the addition or substitution of mem- 
bers on a committee already appointed, shaU give previous notice 
of the names intended to be proposed by him.^ By another rule 
also, which is not imperative, it is recommended to every member 
moving for the appointment of a select committee, to ascertain 
pre^dously whether each member proposed to be named by him on 
such committee, vnR give his attendance thereupon.-^ 

1879. The practice of allo^udng the mover of a proposition him- 
self to nominate the committee for its consideration, may seem at 
first sight to be liable to great abuse, as amounting in point of fact 
to the exercise of a sort of patronage.^ But it must be recoUected, 
that the house, by adopting the resolution for the committee, has 
signified its T\'iUJngness that the subject should be so considered or 
investigated ; that the member nominating the committee must be 
supposed to feel as strong an interest in the proper consideration 
of the subject as any one, and also to possess or to be walfing to 
obtain the knowledge necessary to enable him to decide upon the 
qualifications of the members whom he selects ; that if improper 
persons should be proposed, the house has it in its power to 
reject them and substitute others ; and, lastly, that if the proposed 
investigation is of a pohtical character, and opposed to the tactics 
of the party in power, or if the fist of members does not contain a 
proper proportion of the members of that party, the government 
have it in their power to take the matter into their own hands. 

1 Pari. Eeg. L 314; Hans. (1), XXX^^. •* May, 297; Coram. Jour. XCL 30; Same, 
S99, 906. See also J. of C. VIII. 4; Same, IX. XCII. 8; Same, XCIH. 221. 

6; J. of S. 70, 85. 5 May, 297; Hans. (3), XXXIX. 1023, 1024, 

2 Hans. (1), XXXVI. 899, 946. 1025, 1026; Same, XLIII. 1126. 

3 Pari. Reg. L 314. « Hans. (3), XXXIX. 1023, 1024, 1025, 1026. 



Chap. II.] appointment of select committees. 733 

Article II. Appointment of a Select Committee hij Ballot. 

1880. When this mode of proceeding is to be adopted in the 
house of commons, the house, having first resolved that the subject 
in question be referred to the consideration of the committee, and 
having also resolved upon the number of which the committee 
shall consist, next resolves, " that the committee be chosen by way 
of balloting." The time for the balloting is then fixed by an order, 
" that the members of the house do, upon [a day named, at a given 
hour,] prepare lists to be put into glasses, of [so many] persons' 
names to be the said committee." 

1881. On the day, and at the time, mentioned in the order, the 
order, on motion, is read ; and the sergeant-at-arms then receives 
direction, by an order of the house, " to go with the mace into 
Westminster Hall, and into the court of requests, and places adja- 
cent, and summon the members there to attend the service of the 
house." On his return, the clerk and clerk assistant go on each 
side of the house with glasses, to receive from the members, except 
the speaker, the lists of persons' names to constitute the committee. 
When they have received the lists, they bring them up to the table, 
and a committee, nominated by the speaker, is then appointed to 
examine the lists, and report to the house, upon which of the per- 
sons balloted for, to the requisite number, the majority tails. The 
committee is usually directed to withdraw immediately into the 
committee chamber. 

1882. When the scrutineers, as the members of the committee are 
denominated, have examined the lists, they report by one of their 
number, usually the first named, the names of the requisite number 
of persons upon whom the majority of votes has fallen, together 
with the number of votes received by each, and the speaker an- 
nounces the result. The majority necessary to an election is not 
an absolute majority of all the persons voting, but only a plurahty ; 
and if there are several persons, who all have the same number of 
votes, and the whole would make more than the number fixed for 
the committee, the speaker gives a casting vote for the election of 
the requisite number. Thus, if on a balloting for thirteen members, 
it should appear that twelve were elected by majorities, and that 
the next highest number of ballots given in was received by three 
or more persons, the speaker could then give his casting vote, as in 
other cases, for one of the three.^ Whether in any of the legisla* 

1 Comm. Deb. XIIL 216, 217; Comm. Jour. XXIV. 154. 

62 



734 LEGISLATIVE ASSEMBLIES. [PaRT VII. 

tive assemblies of this country, an absolute majority is required, oi 
a bare plm*ality is permitted, in the election of committees, must, 
in the absence of any rule on the subject, depend upon the general 
law or usage of the particular State to which such assembly be- 
longs. Sometimes it is provided by a special rule, that after one 
or two unsuccessful attempts to elect by absolute majorities, at suc- 
ceeding trials plm-alities only shall be requisite. 

1883. If the scrutineers are in doubt as to whether a particular 
vote should be allowed or not, they include it in the report, and 
state the fact, leaving it to the determination of the house; in 
which case, if the house do nothmg in reference to the subject, the 
proceeding of the committee is thereby sanctioned.^ 

1884. When an election takes place by baUot in any of our legis- 
lative assemblies, a committee is usually appointed, who collect 
and make a list of the votes given in which they report to the pre- 
siding officer, who thereupon determines and declares the result, 
first giving his casting vote, if necessary, or voting as requu-ed by 
the rules of the assembly. 

1885. A balloted committee, the number of which is fixed by 
a resolution of the house, is no more susceptible of enlargement, 
than a committee appointed on motion, and for the same reason. 

1886. If vacancies occur, from any cause, in a balloted commit- 
tee, they must be filled in the same manner in v^^hich the committee 
was originally appointed ; inasmuch, as the house having come to 
a resolution, that the committee be chosen by way of balloting, no 
other method can be resorted to vvT.thout violating the order of the 
house. 

1887. In regard to dischargmg any of the members of a balloted 
committee, from further attendance upon it, on account of some 
parliamentary disqualification, or physical impossibility of attend- 
ing, it does not appear, that a balloted committee stands upon a 
different footing firom a nominated committee ; for two reasons, 
first, that the ordinary mode of proceeding seems to be the only 
appropriate one ; and secondly, that the question presented by a 
motion for the discharge of a member on the grounds mentioned, 
is whoUy different fi:om that which arises on the election of a 
member. 

1888. The discharge of a member, however, by motion and vote, 
in the ordinary course of proceeding, might give rise to great incon' 
venience ; inasmuch as if the number of votes by which a member 

1 Comm. Jour. XXII. 39. 



Chap. IL] appointment of select committees. 735 

had been elected should be less than an absolute majority, as it 
might frequently be, it would be in the power of those who voted 
for other candidates, and therefore against him, to annul his election 
by discharging him from the committee. 

1889. When it is proposed to discharge one member from a 
balloted committee, for the purpose of substituting another, the 
proceeding is objectionable in reference to both parts of it, on the 
ground that, by the order of the house, the committee is to be ap- 
pointed by ballot. It is objectionable as to the discharge, because 
it is not proposed, upon the ground of any disqualification, but 
merely because the mover prefers the one member to the other, for 
the committee ; and it is objectionable, as to the substitution of the 
new member, because every member of the committee ought, by 
the order of the house, to be appointed by ballot.^ 

Article III. Other Modes of Appointment. 

1890. Besides the modes of appointing committees above de- 
scribed, such others may of course be adopted, in special cases, as 
the house may at any time think proper ; as, for example, where 
two members were appointed by nomination, and the others were 
chosen by ballot,^ or where twenty-one members were chosen by 
ballot, and each of two members nominated by the house, was 
allowed to strike off four from that number.-^ 

1891. When select committees are appointed, whether occasional 
or standing, the members thereof are doubtless required to take 
notice of their appointment as such, as of other proceedings of the 
house of which they are members, and proceed with the bills re- 
ferred to them ; but the clerk ought regularly to furnish each one 
with a certified copy of the record of his appointment. When a 
select committee is appointed, it is ordinarily enough if the names 
of all the members appear in one certificate. Papers referred to a 
committee, may be delivered by the clerk to any member of it ; but 

i Hivns. (1), IV. 511, 517, 536; Same, being made, Mr. Speaker Manners Sutton de- 

XXXVII. 190 ; Same, 200, 201, 202, 203, 204. clared it to be irregular, on the ground " that 

April 30, 1805, on the report of the scrutineers the putting one name in the room of another, 

being read for the committee on the 10th would be, in a manner, jumping over several 

Naval Report, Mr. Whitbread moved, that the of the piincipal orders; and first, that one that 

name of Lord Castlereagh be struck out, and the committee be appointed by ballot." Hans, 

that of Mr. Baker substituted in its place. (1), 200, 201, 202, 203, 204. 

This motion vi'as debated at length, without ^ Comm. Jour. LXXXVIII. 144, 467; May, 

any objection being made to it in point of 298. 

order, but was negatived. Hans. (1), IV. = Comm. Jour. LXXXVIIL 160, 475; May, 

611, 517, 536. Feb. 6, 1S18, a similar motion 298. 



736 LEGISLATIVE ASSEMBLIES. [FaRT VII 

it is usual to give such papers to the first named, or to whomsoever 
else acts as chakman of the committee.^ 

1892. Of aU the infinite variety of methods which may be 
adopted and practised in the appointment of committees, tT\"o only 
need be mentioned, particularly, as pecuhar to the legislative assem- 
bhes of this country. The first of these, which prevails very ex- 
tensiv'ely ^viih. us, and is in more frequent use than any other 
method, is the appointment of committees, both permanent and 
occasional, by the speaker. This it is which makes the presid- 
ing officer so much of a political functionary, and leads gen- 
erally to a political struggle for the possession of his office. It 
need hardly be observed, that in the appointment of committees, 
the principles of party are preser\^ed, and that, in general, while aU 
parties are duly represented, a controlling influence is given to the 
predominating party in the constitution of every committee.^ In 
exercising the duties of his office in this respect, the speaker is not 
obhged to proceed immediately, but may take such time as he may 
think proper for the election and appointment of a committee. 
The only other method, which is occasionally practised v^dth us, is 
that of the viva voce or oral suffi-age. Li making an election by 
this mode, the clerk calls the roll of the house, and a committee or 
tellers receive and report the result of the votes. 



CHAPTER THIRD. 

POWER AXD AUTHOEITT OF SELECT COMMITTEES. 

1893. The functions of committees, in reference to the subject- 
matter referred to their consideration, and the powers conferred on 
them for the performance of the duties vdth which they are 
charged, emanate directly from the house of which they are mem- 
bers, and depend entirely upon the authority originally vested in 
them, and such particular instruction as they may subsequently 
receiv^e. 

1894. The appointment of a committee usually comprises two 
things, ^rs?, the subject referred to the consideration of the com- 

1 Jefferson's Manual, § XXVL 2 Appendix, 5IY. 



CUAP. III.] POWER AND AUTHORITY OF COMMITTEES. 737 

mittee ; and, secondly, the powers with which the committee is in- 
vested for the discharge of its duties. Hence, the powers of a 
committee relate either to the matter about which, or to the manner 
in which, its functions are to be exercised. 



Section I. Of the Powers with which Committees are in- 
vested, TO enable them to discharge the Duties of their 
Appointment ; or, in other words, of the incidental Powers 
OF Committees. 

Article I. As to the Time of Sitting. 

1895. The time for a committee to assemble, in the first instance, 
is always fixed by the house ; otherwise the members would have 
no authority to meet as a committee. But, having once met, agree- 
ably to the order of the house, if a committee should be unable to 
finish the'business at that meeting, it may adjourn to another time, 
and so on until the business is finished. If it should previously 
adjourn without day, there must then be a new order for it to as- 
semble and proceed.! According to the practice which prevails 
here, it is not usual for the time of the first meeting of a committee 
to be appointed by the house. The committee meets at some time 
when the house is not in session, on the requisition of the member 
who acts as chairman, or of some other member duly authorized,^ 
in one of the rooms appropriated to the use of committees. 

1896. It is an expedient sometimes resorted to by committees, 
with a view to dispose of the business referred to them, to adjourn 
without day, or to a day beyond the session.'^ This course, though 
irregular, as it is the duty of a committee to report, may and com- 
monly does receive the sanction, or, at least, the acquiescence of 
the house ; otherwise the committee may be directed by the house 
to reassemble and proceed with the business. 

1897. Members of committees being as much bound as other 
members to attend the service of the house, it is a rule, that com- 
mittees are not to sit whilst the house is sitting, without the express 
leave and direction of the house ; * and, therefore, when it is found 

1 Elsing, Harl. Misc. V. 213. chairman be absent, or decline to appoint such 

2 In the house of representatives of the meeting. 

United States, it is provided by rule, that it " Pari. Reg. XXL 395; Hans (3), XXXIL 
shall be the duty of a committee to meet on 501, 506; Same, (2), X. 13. 
the call of any two of its members, if ^he * Hans. (3), XIX. 381. 

62* 



738 LEGISLATIVE ASSEMBLIES. [PaRT VII. 

necessary that a committee should meet or sit "U'hilst the house is 
sitting, there is always an express order to that effect-^ Sometimes 
the authority is limited to a particular period, or to certain hours on 
each day.^ Sometimes a committee is directed to withdraw imme- 
diately in order to discharge the duties of its appointment, and 
sometimes a general authority is given either in the order for the 
committee's appointment, or by some subsequent order, to sit 
whilst the house is sitting. 

1898. With a view to the enforcement of this rule, it is provided 
by a sessional order, in the house of commons, " that the sergeant- 
at-arms, attending this house, do, from time to time, when the 
house is going to prayers, give notice thereof to all committees; 
and that all proceedings of committees, in a morning, after such 
notice, be declared to be null and void." ^ In pursuance of this 
order, committees are nominally adjourned when the speaker takes 
the chah' ; but the custom appears to be, not^\dthstanding, to 
complete the examination of a wdtness, if one should be under ex- 
amination at the time, although it may last half an hour or an 
hour ; the only check upon this practice being, that no division can 
take place in the committee after the chair of the house is taken by 
the speaker ; so that if an occasion should arise for the committee 
to divide, the committee at once adjourns.* Leave is sometimes 
obtained, in urgent cases, on the meeting of the house, for a com- 
mittee to sit, untn a certain specified time.° 

1899. It is another rule relating to the sitting of committees, the 
reason of which is not, perhaps, equally apparent,^ that they cannot 
regularly sit dm-ing an adjournment of the house, for a longer 
period than tiU the next sitting day.' If, therefore, an adjournment 
takes place suddenly, and without any order being made in refer- 
ence to the sitting of committees, in the mean time, all committees 
which stand adjom-ned to any time, or have been ordered to meet 
durmg the interval, will be without day, and cannot sit without a 
new order for that purpose. Hence, when an adjournment takes 



1 Hans. (3), XIX. 381. next sitting day, -which is deemed to be a con- 

2 Jour, of House, HI. 157, 511; Same, V. tinuance, the functions of members continue 
120; Same, VH. 289; Same, VHI. 177, 553, during the interval; but that when it ad- 
585; Same, IX. 485; Cong. Globe, VIH. 158; joiu-ns for a longer period, which is a recess, 
Same XI. 547. the functions of the members cease in the 

3 jiav 304. mean time. For the same reasons, coramit- 
* Hans. (3), XXXVII. 189. tees have not been considered as authorized 

5 May, 304. to sit in the recess. 

6 The reason of the rule probably is, that, ^ May, 303; Pari. Eeg LSDI. 613 Hans, 
when the house adjourns from one day to the (1), XXXV. 1309. 



Chap. III.] power and authority of committees. 739 

place, as is usual, from Friday until Monday, leave is given to com- 
mittees to sit on Saturday.^ 



Article II. As to the Place of Meeting'. 

1900. The place for the assembling and sitting of a committee, 
is always fLxed by the house ; and the members cannot meet else- 
where as a committee. But it sometimes happens that a commit- 
tee, in the prosecution of its business, finds it necessary to meet at 
some other place ; as, where there is occasion to examine records, 
or other things not conveniently susceptible of removal ; and, in 
such cases, unless the committee has been previously authorized to 
adjourn from place to place, it must obtain the special leave of the 
house for that purpose.^ In our legislative assemblies it is not 
usual to fix upon the place, any more than the time, for the first 
meeting of a committee. The committee meets at the place speci- 
fied in the call ; and it is presumed that it may adjourn from place 
to place, without the special leave of the house in the prosecution 
of the duties of its appointment. 



Article III. As to sending for Persons, Papers, and Records. 

1901. When the object, or one of the objects, of a select com- 
mittee, is the investigation of facts, it may, without any express 
authority for the purpose, examine aU witnesses that may appear, 
and all papers that may be brought before it, and all records to 
which it can obtain access in the prosecution of its inquiries ; but 
without express authority a committee cannot compel the attend- 
ance of witnesses, or the production of papers ; and hence, when- 
ever it is deemed necessary in the first instance, or becomes so 
afterwards, leave is given to a committee " to send for persons, 
papers, and records." 

1902. By virtue of this authority, any witness may be sum- 
moned, by an order signed by the chairman, to appear before the 
committee, and to bring with him all such documents as he may 
be directed to bring for the use of the committee. Any neglect or 
disobedience of the summons wiU be reported to the house, and the 
offender wiU be dealt with in the same manner as for a similar con- 
tempt to the house itself.^ The proceedings relating to the sum- 

iMay, 237; Pari. Reg. LXIIL 613; Hans. 2 Romilly, 304, note 1. 

(1), XXXVI. 1309. May, 299. 



740 LEGISLATIVE ASSEMBLIES. [PaRT VIL 

moning, and compelling the attendance of ^\T.tnesses, are treated of 
in another place. 

1903. Obedience is as much due to the summons of the com- 
mittee as to the order of the house ; and the proceedings of par- 
ties in obeying it wiR be equally justifiable, and they vnM them- 
selves be equally entitled to protection, as if they were acting in 
obedience to a warrant from the speaker. Thus, where a select 
committee, appomted to investigate certain complaints respectmg 
the prison of Lincohi Castle, ^vith pov^er to send for persons, pa- 
pers, and records, having found it necessary to examine witnesses 
who w^ere on the spot during the transactions in question, and 
entertaining doubts whether the ^^arrant which they might issue to 
the sheriff, directing him to bring up the bodies of those under his 
charge, \vould be sufficient to protect him against actions of escape, 
thought it proper to suspend all further proceedings, until they 
could obtain ad\dce and assistance from the house, and made a 
special report accorduigly : — the house entertaining no doubt, re- 
committed the report.! 



Aeticle IV. As to Reporting" from Time to Time. 

1904. Li the ordinary course of proceedings, it is the duty of a 
committee to make its report, when it has gone through with and 
completed its business. It is sometimes convenient, however, that 
a committee should be authorized to report from time to time, 
especially where a committee is engaged in an examdnation of wit- 
nesses, whose evidence is to be laid before the house. In such 
cases, the committee is to exercise its discretion, as to reporting 
fi'om day to day, or from time to time, and as to the best division 
of the evidence for the purpose of reporting it to the house.^ This 
authority gives power to a committee to report not only upon the 
subject originally referred to it, or upon the general subject of its 
appointment, but also upon matters occasionally referred to it.^ 

1 Hans. (1), XXnr. 8S3. Cong. 1st Sess. 12S8; Same, 31st Cong. 2d 

2 Hans. (3), XXXm. 190. Sess. 267, 394; Same, 32d Cong. 1st Sess. 19&, 
8 J. of H. 21st Cong. 2d Sess. 413: Same, 196. 

27tli Cong. 1st Sess. 204, 206; Same, 30th 



Chap. III.] power and authority of committees. 741 



Section II. Of the Powers of Committees as to the Subjects 

REFERRED TO THEM. 

1905. The functions of select committees, in reference to the 
subjects referred to them, are exceedingly various. The most com- 
mon authority conferred on them is expressed in the usual form of 
the order for the reference of a petition to a select committee, 
namely : " that the said petition be referred to the consideration of 
a committee, and that they do examine the matter thereof, and 
report the same, with their opinion thereon," (or " as it shall appear 
to them,) to the house." The appropriate functions of the standing 
committees, if not indicated by their names merely, are usually set 
out at length in the rules and orders for their appointment. 

1906. The rules, relating to the power of committees, in respect 
to the subject-matter referred to them, are two: — I. A committee 
is not at liberty to entertain any proposition, or go into any inquiry, 
which does not come within the direct purposes for which the com- 
mittee is appointed, as expressed or clearly implied in the authority 
conferred upon it, or which is not grounded upon some paper which 
is referred to the consideration of the committee.^ 11. When a 
subject is referred to a committee, to consider the matter thereof, 
and to report its opinion thereupon to the house, the committee is 
authorized to recommend any measure connected with and grow- 
ing out of the subject so referred.''^ 

1907. These rules are founded in the clear and indisputable prin- 
ciple of parliamentary law, that a committee is bound by, and is 
not at liberty to depart from, the order of reference ; a principle, 
which is essential to the regular despatch of business ; for, if it were 
admitted, that what the house entertained, in one instance, and 
referred to a committee, was so far controllable by that committee, 
that it was at liberty to disobey the order of reference, all business 
would be at an end ; and, as often as cu'cumstances should afford 
a pretence, the proceedings of the house would be involved in end- 
less confusion and contests with itself.^ 

1 Pa4-1. Reg. XXII. 258. See also J. of H. a Pari. Reg. LX. 391, 395, 396. 
82d Coug. 1st Sess. 785. » Pari. Reg. XII. 382. 



742 LEGISLATIVE ASSEMBLIES. [PaRT \ IL 



CHAPTER FOURTH. 

FORMS or PEOCEEDIXGS IN SELECT CO:\nnTTEES. 

1908. Committees are regarded as portions of the house, limited 
in their inquiries by the extent of the authority given them ; but 
governed in their proceedings by the same rules, which prevail in 
the house,^ and which continue in full operation in every select 
committee.- It is upon this principle, that the practice appears to 
be founded, of consulting the speaker, in reference to points of order 
and the forms of proceeding,- by select committees. 

1909. I. A select committee is presided over by a chairman 
appointed by itself, who has and exercises, within the limited 
authority conferred on the committee, the same powers and duties 
as the speaker of the house. It is attended by a clerk, and, if 
necessary, by a shorthand writer appointed by the clerk of the 
house, to which the committee belongs, and it keeps minutes of its 
proceedings. 

1910. It is competent, of com-se, for a legislative assembly to fix 
upon the member of a committee who shall act as chairman ; and 
this is in fact done in all our legislative bodies, by a long continued 
usage, sanctioned to a greater or less extent by a special rule or 
order in each assembly ; and subject to the right of the committee 
when assembled and organized, to choose a chahman for itself. 
Committees vsdth us are appointed in three principal ways. When 
chosen by ballot, members aTe arranged according to the number 
of votes ; when appointed by the speaker the order in which they 
are named is the order of arrangement, and when chosen by oral 
suffrage, they are arranged in the order of the votes given for each. 
When the number of votes given for two or more is equal, those 
members are usually arranged in the order in which they happen to 
be voted for. The first-named member of a committee acts as its 
chairman ; the second-named, in the absence of the first takes the 
chair of the committee, and so on to the last. If any member of 
the committee is excused by the house fi'om fm'ther service thereon, 
or in any way ceases to be a member, his place is supplied in the 

1 Hans.l 3), XXXIL 501, 502, 503, 504. 2 Hans. (2), XI. 912, 914. 



Chap. IV.] forms of proceeding in committee. 743 

same manner in which he was originally appointed ; and such new 
member becomes the chairman, if he takes the chairman's place, 
unless otherwise ordered by the house. 

1911. II. A committee cannot proceed to business, unless the 
requisite number to constitute the committee is present. This 
number is fixed by the house, in reference to each particular case ; 
if not so fixed, it "v^^ould be necessary for aU the members of the 
committee to attend.^ Three are generally a quorum in commit- 
tees of the upper house ; in the commons, the usual number is five ; 
sometimes, however, three, and occasionally seven, or any other 
number which the house may direct. On two occasions, in the 
house of commons, where the investigations partook of a judicial 
character, the house named a quorum of five, but, at the same time, 
directed the committee to report the absence of any member, on 
two consecutive days.'^ When the quorum of a committee is not 
fixed by the house, it is understood with us that a majority of a 
committee constitutes a quorum for proceeding.^ 

1912. If after proceeding to business, the number of members 
present should be reduced below the quorum, or if any member 
should leave the room, where there was no number fixed for the 
quorum, the business of the committee would not necessarily be 
interrupted, unless notice should be taken by a member that the 
requisite number was not present. But no question could be de- 
cided by a vote, without a quorum ; as, in that case, the irregularity 
appearing on the minutes would be obvious. In these particulars 
the practice is the same as in the house. 

1913. III. In the prosecution of the business referred to them, 
committees proceed by motions, resolutions, and votes ; and, in all 
their proceedings, with certain exceptions, which will be presently 
mentioned, the rules by w^hich they are governed are absolutely the 
same with those by which the house is governed in analogous pro- 
ceedings. 

1914. The exceptions to the rule are, that, in committees, a 
member may speak more than once to the same question ; * that a 
committee has no authority to punish one of its members or other 
person, for any offence committed against it, as by disorderly words 
or contemptuous conduct, — as, for example, when a witness re- 
fuses to testify, or prevaricates, — but can only report such offence 
to the house for its animadversion ; and that, in practice, it is not 

» Scobel. 4r, 48, » Jefferson's Manual, Sec, XXVI, 

2 May, 398. * Scobel, 35, 36, 



744 legisiiatrt; assemblies. Paet VII. 

considered necessary that a motion should be seconded, though 
there is no rule to this effect, and it is difficult to see any sufficient 
reason \vhy a seconding should not be required as well in com- 
mittees as in the house. 

1915. Another exception, which is peculiarly American, is, that 
no reconsideration of a vote can take place in a committee, either 
select or of the whole. This principle, however convenient it 
may be, seems to be founded in a somewhat too literal and strin- 
gent an application of a familiar doctrine of the common parlia- 
mentary ISiW.^ 

1916. IV. Questions are determined in select committees by the 
voices and by divisions, in the same manner as in the house to 
which they belong. In the lords' committees, the chairman votes 
like any other peer ; and if the members on a division are equal, 
the question is negatived. In the commons, the practice is similar 
to what takes place in the house on di^dsions ; the chairman vot- 
mg only when the numbers are equal, and then gi^^ng the casting 
vote.2 

1917. According to the constitution of election committees, as 
originally established by the Grenville act, the chauman voted T\T-th 
the other members in the ffi'st instance, and then, in case of an 
equahty of numbers, gave a casting vote. But tliis privilege was 
peculiar to election committees, which were regulated as to their 
proceedings enthely by statute, and did not extend to any others. 
It appears, however, that a notion at one time prevailed, to some 
extent, that the chairman of every select committee had the same 
right ; but, upon the subject being brought before the house by the 
chairman of a select committee who had so voted, INIr. Speaker 
Abercrombie gave his opinion, which ■was acquiesced in by the 
house, that the chau-man of a select committee could only vote 
when the committee w'as equally divided, in which case, it was 
his dut}^ to give a casting vote.^ The house very soon afterwards 
came to a resolution "that according to the established rules of 
parliament, the chairman of a select committee can only vote when 
there is an equahty of voices." '^ 

1918. V. Committees have the same authority as the house 
itself, in regard to the exclusion of strangers from the committee 
room. When a select committee of the house of lords is taking 
the examination of witnesses, strangers are rarely allowed to be 

1 Jefferson's Mauual, Sec. XXYI. s Hans. (3), XXXH. 501, c02, 503, 504. 

3 May, 303; Comm. Jour. XCI. 214. * Comm. Jour. XCI. 214. 



Chap. IV.] forms of proceeding in committee. 745 

present ; in the commons' committees, the presence of strangers is 
generally permitted. When committees are deliberating, it is the 
invariable practice to exclude all strangers. 

1919. Members of the house to which a select committee be- 
longs stand upon a different footing. In the house of lords, all the 
lords are entitled to attend the select committees, and may speak, 
but they are not allowed to vote, and are bound to give place to 
those of the committee, though of a lower degree.^ Members of 
the house of commons are also entitled to be present at select com- 
mittees. If the committee is an open one, they have a right not 
only to be present, but to take a part in the proceedings ; being, in 
fact, members of the committee. K the committee is select^ with- 
out being open, other members may attend and be present at the 
examination of witnesses, and at other proceedings of the com-* 
mittee, until it comes to deliberate ; ^ but they have no right to at- 
tend for the purpose of addressing the committee, or of putting 
questions to the witnesses, or of interfering in any manner what- 
ever in the proceedings.^ Whether members can be excluded from 
the committee room, when the committee is proceeding to deliber- 
ate, is a question which appears to be still unsettled.^ If the com- 
mittee is one of secrecy, aU the proceedings and inquiries through 
out are conducted with closed doors; and it is the invariabk- 
practice for all members not on the committee to be excluded from 
the room.^ 

1920. VI. The members of a select committee having themselves 
no other than a delegated authority, derived from the house of which 
they are members, which authority is delegated entire to each and 
every member of the committee, it is not competent to the commit- 
tee to divide itself into sub-committees, among whom to apportion 
or delegate its own functions, any more than it is competent to the 
committee to fix the number of its members necessary to constitute 
a quorum.*^ It does not seem, however, to be incompatible with 
this principle, for a select committee to avaU itself of the services of 
its members, individually, or in the form of sub-committees, for the 
doing of many things connected with the business of the committee, 
which do not involve a delegation of authority. 

1 May, 300. 4 See May, 300; Hans. (3), LXXVIH, 305, 

2 Scobel, 49 ; Hatsell, IV. 135, note. See also 806. 
Comm. Jour. I. 849. 6 w^-^ 302. 

3 Hans. (3), LXXHI. 725, 726. a Hans. (1), XXXIX. 776, 777. 

63 



746 LEGISLATIVE ASSEMBLIES, [PaKT VJl. 



CHAPTER FIFTH. 

or INSTRUCTIONS TO COMMITTEES. 

1921. The order, by which the appointment of a select commit- 
tee is directed, specifies the authority conferred upon the committee, 
as to the subject-matter, and contains, or is accompanied by other 
orders which contain, the powers "with which the committee is 
clothed for the performance of its duties. It is also competent to 
the house, afterwards, to enlarge the authority of the committee, 
either as to the subject-matter, or its incidental powers, by means 
of "what are called instructions. 

1922. Listructions may be given to a committee, at any time 
after the adoption of the order for its appointment, although the 
members have not yet been named ; but it is too early to move 
instructions on the motion for the appointment of the committee ; ^ 
any alteration or enlargement of the powers proposed may then be 
effected by amendments of the motion for the committee. 

1923. The proper object of an instruction to a committee, as to 
the subject-matter referred to it, is to enlarge its powers ; that is, 
to brmg within the scope of the authority already confen-ed upon 
it, matters not originally coming under the order of reference. An 
instruction, therefore, which merely affirms the existing powers of 
a committee, is unusual, and irregular, as being whoUy unnecessary. 
Thus, where a committee had been appointed to inquire into the 
state of the poorer classes in Ireland, and the best means of improv- 
ing their condition; and a motion was made, that it be an 
instruction to the committee to inquire how far the statute of the 
43 Elizabeth might be made applicable to the poor of Ireland ; the 
speaker, Mr. Manners Sutton, said, "that the committee already 
had power to extend their inquiries to that point; and it was 
unusual to give an instruction to it to do that which it already had 
the power to do." ^ 

1924. An instruction, which proposes to direct a committee abso- 
lutely to do or not to do a particular thing, which is already wdthin its 
powers to do or not to do, as it may think proper, is irregular; on 

I Hans. (3), XXXL 147, 153, 155, 163. s Hans. (2), XXIH. 202, 222. 



Chap. V.] instructions to committees. 747 

the ground, it is presumed, that such an instruction would be repug- 
nant to the reference, as the effect of it would be, in fact, to with- 
draw from the consideration of the committee so much of the 
power originally conferred upon it, and to decide upon that matter 
in the house. Thus, where it was proposed to instruct the com- 
mittee on a bill, that it should not entertain a certain proposition, 
which was evidently within the scope of the bill, the speaker, Mr. 
Shaw Lefevre, said, " The rule of the house was simply this, that 
no person could move an instruction to a committee to do that 
which could be done without an instruction. If the proposition 
was within the scope and title of the bill, it was quite competent 
for the mover to introduce it in the committee, either by moving an 
amendment to some clause, now in the bill, or by a new clause, and 
then it would not be competent for him to move an instruction for 
that purpose." ^ 

1925. The reason of the rule above stated does not seem to 
apply to an instruction, by which a committee is directed absolutely 
to do something which is not within the scope of its authority ; 
and, in fact, instructions of this description are among the most 
common. An instruction to a committee not to do a particular 
thing, not within the scope of its appointment, would only be a 
direction to it not to transcend its authority. 

1926. There are consequently but two forms of instruction to a 
committee in reference to the subject-matter, namely, that it be an 
instruction to the committee that it has power to do a particular 
thing, or that it do a particular thing, which is not within the 
authority already conferred upon it. 

1927. Whenever it becomes necessary to enlarge or add to the 
incidental powers of a select committee, it is done by way of an 
instruction ; as, for example, that it be an instruction to the com- 
mittee that they have power to report from time to time, or to 
adjourn from place to place, or to send for persons, papers, and 
records. 

1 Hans. (3), LXXIV. lOr. 



748 LEGISLATIVE ASSEMBLIES. [PaET VIl 



CHAPTER SIXTH. 

OF OTHER INTEEMEDIATE PROCEEDINGS IN THE HOUSE WITH 
REFERENCE TO COMMITTEES. 

1928. Committees may, at any time after their appointment to 
consider a particular matter, and before their report upon it, be dis- 
charged by the assembly from the further consideration of the 
same. They may also, as has been seen in the last chapter, be in- 
structed in reference to it. But besides instructions to committees, 
there are frequent occasions on which proceedings take place in the 
house mth reference to committees, after the order of reference, 
and before the final report. 

1929. Occasions of this sort occur when special reports are made 
from committees, with reference to disorders committed therein, or 
to the use of disorderly words ; or to some contempt of the com- 
mittee's authority, as where a person summoned as a ^dtness re- 
fuses to appear, or to testify, or prevaricates in his testimony ; or 
when intermediate measm-es become necessary in the prosecution 
of the business referred to the committee, as ^vhen the committee 
desh'es the instruction of the house in reference to the form of pro- 
ceeding ; or when a committee is remiss in proceeding or making 
its report ; or when a committee has adjourned without day, or to a 
day beyond the session, without reporting ; or when it becomes 
necessary to fiU vacancies in the committee, or to enlarge it by the 
appointment of additional members ; in aU these cases, there is 
ground for further proceedings in the house.^ 

1 An order of the committee of privileges cases of Nathaniel Eounsavell, J. of H. VIII. 

and elections not being complied with, and 278,279,280; Eenben M. Whitney, Same, 24th 

complaint thereupon made in the house, the Cong. 2d Sess. 367; Eitchie & Sengsteck, 

order was there renewed. Coram. Jour. XV. Same, 31st Cong. 1st Sess. 1318, .1336, 1343, 

71. See also Same, XVI. 277, 291,324,325; 1344, 1345. 
Same, XVH. 519, 527, 589, 542. See also the 



Chap. VTL] reports of committees. 749 



CHAPTEE SEVENTH. 

OF THE REPORT. 

1930. The great purpose for which committees are appointee 
being, the taking of such measures with reference to the subject- 
matter referred to their consideration, that when their acts and pro- 
ceedings are agreed to, they become the acts and proceedings of 
the house, it is consequently the duty of committees both to pro- 
ceed under the authority given them, and to report their doings to 
the house. ^ 

1931. A committee having assembled at the time and place ap- 
pointed for it to meet, and having organized itself by the choice of 
a chairman and clerk, or by the choice of the latter only, where it 
acquiesces in the chairman appointed by the house, it is then ready 
to proceed with the business referred to it, or with such other busi- 
ness as it may have to do, and for this purpose it possesses sub- 
stantially the powers vested in the house of which it is a part, as a 
deliberative body, and proceeds in substantially the same manner. 
But it also adopts many forms of proceeding, according to circum- 
stances, which are peculiar to itself, and which bear only a general 
analogy to ordinary parliamentary proceedings. 

1932. Where a committee, whether select or of the whole, is 
proceeding upon a paper before it, either submitted to it by one of 
its own members, or referred to it by the house, the orderly course 
requires that the paper should first be read at length by the clerk, 
for the information of the committee, and then by the chairman, by 
paragraphs, pausing at the end of each, to give opportunity for 
amendments therein to be moved, and to put questions for amend- 
ment, if proposed. K the paper or papers before the committee 
originate with itself, and consist of resolutions on distinct and in- 
dependent subjects, a question is put, on each separately, for agree- 
ing to it as amended or unamended, and no final question on the 
whole. But if the resolutions relate to the same question, and are 
parts as it were of the same whole, then a question is to be put on 
the whole. Thus, if it is a bUl, draft of an address, series of reso- 
lutions, or other paper originating with the committee, no question 
is put, as the committee passes through the paragraphs, on agreeing 

1 Pari. Eeg. XII. 395; Hans. (3), XXV. 963. 

63* 



750 LEGISLATIVE ASSEMBLIES. [PaRT Vll 

to each separately, they being parts of one whole, but this is re- 
served for the close, when a question is put on the whole for agree- 
ing to it as amended or unamended. If the paper before the com- 
mittee is one which has been referred to it, the committee proceeds 
through it by paragraphs as above stated, putting questions of 
amendment if proposed, but no final question on the w^hole; 
because all parts of the paper, having been adopted by the house, 
stand, of course, unless altered or struck out by a vote of the house 
itself. Even if the committee is opposed to the whole paper, and 
cannot make it acceptable by amendment, they cannot reject it, 
but must report it back to the house without amendment, and 
there make their opposition.^ 

1933. The natural order, in considering and amending any 
paper, is to begin at the beginning, and proceed through it by para- 
graphs ; and this course is so generally adhered to, that when a 
latter part of a paragraph has been amended, it is not in order to 
recur back, and make any alteration in a former part. This rule is 
doubtless conducive to the regular proceeding of numerous assem- 
blies ; but in those which are smaller, and especially in select com- 
mittees, its observance may conveniently be dispensed with or 
disregarded.^ This order of proceeding admits of a single excep- 
tion, when by a vote of the assembly, the preamble, if the paper 
before the committee has any, is postponed for consideration until 
the other parts of the paper have been gone through with in the 
manner above mentioned.^ 

1934. If a committee, therefore, without proceeding with or 
completing the business referred to its consideration, adjourns with- 
out day, or to a day beyond the session, — which is a course occa- 
sionally taken by committees with a view to dispose of the business 
before them, and which, though irregular, is sometimes allowed 
as a convenient course,"^ — the committee may be dhected by the 
house to reassemble, and proceed with the business referred to its 
consideration.^ A committee if remiss in reporting may be ordered 
by the house to report,*" or to report instanter."' 

1935. When a committee has gone through with the business 
referred to it, and has agreed upon a report to be made to the 
house, the duty of preparing the report is devolved upon some 



1 Jefferson's Manual, Sec. XX VL « J. of H. 25th Cong. 2d Sess. 976. 

2 Jefferson's Manual, Sec. XXVI. ' J. of H. 27th Cong. 2d Sess. 199. In this 

* Scobel, 50; Grey, VII. 431. latter case, thne must be allowed the com- 

* Pari. Reg. XIL 395 ; Hans. (2) X. 13. mittee to assemble in their room, and to agree 

* (See Hans. (2), X. 8, 9, 10. upon and nrepare their report. 



Chap. VIL] keports of committees. 751 

one of the members, usually the chairman, by whom it is prepared 
accordingly, and submitted to the committee for their considera- 
tion. When the report is agreed to by the committee, the chair- 
man or some other member is directed to present it to the house ; 
and the committee having thus performed its functions, adjourns 
•udthout day and is dissolved. But the committee can only act 
when together, and not by separate consultation, and consent, 
nothing being the report, but what has been agreed to in commit- 
tee actually assembled.^ 

1936. The report of a committee, both in its form, and as to its 
substance, ought to correspond with the authority of the commit- 
tee.2 If it does not, it will either be recommitted, disagreed to, or 
du'ected to be withdrawn. If the business of a committee involves 
an inquiry of fact, it should report the facts, or the evidence ; if 
the opinion of the committee is required, it should be expressed 
in the form of resolutions ; ^ if the duty of the committee requires 
it to do a particular thing, it should report the doing of the thing; 
if the preparing of an address or other paper is the subject of the 
committee's authority, it should report the paper in the form re- 
quired. If a paper, other than a petition or memorial or paper of 
that description, is referred to a committee, either select or of the 
whole house, the report thereon is, that the committee agrees or 
disagrees to the paper in question, or agrees to it with an amend- 
ment; if amendments abeady agreed to are referred with the 
paper, they make a part of it ; if not already adopted, they are 
either agreed to or disagreed to, or agreed to with amendments ; 
but if the paper referred to a committee, is one to the contents of 
which the house has given its sanction, the committee cannot, by 
its report, either directly or indirectly, recommend the destruc- 
tion of what the house has so adopted. In the latter case, the only 
proper course is to report the measure in question, either with or 
without amendment, as a committee, and oppose it mdividually in 
the house. K a committee, being equally divided in opinion, finds 
itself unable to determine the matter referred to it, it may refer the 
matter back to the determination of the house ; * or it may re- 
port a statement of the facts, and thereupon ask to be discharged 
from the further consideration of the subject.^ This, however, is a 

» Jefferson's Manual, Sec. XXVI. ; Cong. ■« Hatsell, IV. 192, note. 
Globe, XI. 939. 6 J. of C. VI. 107 ; J. of S. II. 381 ; J. of H. 

2 Pari. Reg. LX. 391, 395,396. 19th Cong. 1st Sess. 591; Cong. Globe, XXI. 

» Gomm. Jour. XII. 687. 1378. 



752 . LEGISLATIVE ASSEMBLIES. [PaKT VII. 

contingency which can only occur, where the chairman votes with 
the other members, and not where he merely has a casting vote. 

1937. The report of a committee is, of course, supposed to be 
prepared and drawn up by the committee or some of its members, 
and not by any other person ; but whether it is so or not is en- 
tirely immaterial, provided the report receives the sanction of the 
committee, and is presented by its order. Thus, where a member 
stated that he had a communication to make to the house, relative 
to the drawing up of the report of a certain committee, and was 
proceeding to state facts and circumstances tending to show, that 
the report was not drawn up by any member of the committee, but 
by the agent of the petitioners ; he was interrupted to order, by 
another member, who inquired whether he had any motion to make, 
and the speaker (Mr. Manners Sutton) said, "that even a motion 
would not relieve the house from its difficulty ; any discussion as 
to who drew up the report was improper ; the committee presented 
the report to the house, and they were responsible for it ; he never 
knew that it was of any consequence to inquire who did or did 
not draw up a report of the kind, inasmuch as the house always 
placed its confidence in the committee which presented the re- 
port." 1 

1938. Where the subject referred to the consideration of a com- 
mittee involves an investigation of facts, — the committee being 
directed to examine the matter thereof, — it is the duty of the com- 
mittee, in the first place, to report so much of the evidence,^ or such 
a summary of it,'^ as it may think proper, for the purpose of pre- 
senting the matter " as it appears to them," together wnth such 
resolutions of opinion, as it has come to, and as it judges the 
house ought to come to, upon the matter as presented by the facts 
and evidence reported.^ 

1939. Resolutions of opinion, merely, upon evidence not report- 
ed, are not resolutions at all according to the received meaning of 
parliamentary language. The grounds of the resolutions, as weU 
as the resolutions themselves, should be reported; otherwise it 
cannot be known what grounds of assent or dissent the committee 
had for its proceedings ; nor can the house have any other ground 
for agreeing or disagreeing with the committee, in the resolutions 
reported, than its confidence in the judgment and integi-ity of the 

1 Hans. (3), XXIL 712; J. of H. 32d Cong. 3 Hans. (3), XXXVIH. 191. 
1st Sess. 785. * Pari. Reg. XI. 488. 

2 Hans. (3), XIH. 8. 



Chap. VIL] reports of committees. 753 

committee ; resolutions so reported are mere resolutions of opinion, 
unaccompanied by facts or evidence.^ 

1940. The conclusions of a select committee are sometimes ex- 
pressed in the form of resolutions, which are not of a proper char- 
acter to be agreed to and to become the resolutions of the house. 
Resolutions, that, in the opinion of the committee, the petitioners 
have fully proved all the facts alleged in their petition, or that the 
committee is of opinion, that the house be moved for leave to bring 
in a bill, etc., are of this kind, but it has no authority to report any 
thing which requires a suspension of the rules.^ In such cases, no 
motion is made for agreeing to the resolutions ; such agreement 
being both unnecessary and incongruous ; but such other motions 
are made, as the circumstances of the case require. 

1941. In reporting evidence, a committee is, of course, to exer- 
cise its own judgment as to whether the whole of the evidence 
shall be reported, or only certain portions of it, or whether the evi- 
dence shall be reported in full, or only a summary of it, according 
as the committee may judge necessary, in order to present the 
grounds of its resolutions to the house.^ If the evidence, as re- 
ported, should not be deemed sufficiently full or complete, the 
house may, on motion, order the minutes of the evidence to be 
reported.* 

1942. K a committee presents its report in the form of a con- 
tinuous statement, without resolutions, it cannot regularly be read 
as a series of resolutions, and proposed to the house to be agreed 
to as such ; but it is competent to any member to move a series of 
resolutions, drawn up in conformity with, and in the exact terras of 
the report of the committee.^ A continuous report is the proper 
form, where the committee reports facts or evidence ; its opinion, if 
proper to be agreed to by the house, is expressed in the form of 
resolutions. Both these forms generally exist in the same report. 

1943. It is competent to a committee, appointed to consider any 
subject, and to report its opinion thereon, to report that leave ought 
to be given for bringing in a bill ; but, in such a case, the committee 
should state its opinion in parliamentary language, namely, that a 
bill be broug-ht in, and not that a bill should pass.^ The usual form 
is, to resolve that the house be moved, or to direct the chairman tc 
move the house, that leave be granted to bring in a biU. 

1 Pari. Reg. XI. 488. * Hans. (3), XXXVIII. 191. 

» Cong. Globe, XXI. 1825. 6 Hans. (3), XXXIII. 71. 

» Hans. ^3), XUI. 8; Same, XXXVIH. 191. « Pari. Reg. XLVII. 414. 



754 LEGISLATIVE ASSEiCBLIES. [PaKT VII 

1944. In regard to clerical form, — a matter by no means unim- 
portant, — a report should be clearly and legibly ^\T:itten ^\dth ink, 
and not in pencil, and \\T.thout any material erasures or interlinea- 
tions. K presented in a foul state, the house t\t.11 order it to be 
recommitted, or withdrawn, in order to its being T\n;itten out in a 
proper manner.^ It is not probable that any report of a merely 
formal nature would be required to be made in "UTiting, but every 
one, at least, which requires the action of the house, or is to remain 
on its files, should be prepared in that manner.^ 

1945. Besides the report, properly so called, relating to the sub- 
ject-matter referred to a committee, it is frequently necessary for a 
committee to make a special report, in reference to some matter 
incidentally arising, relating to the poT\"ers, functions, or proceed- 
ings, of the committee. Such reports are similar in point of form, 
and are proceeded upon in the same manner as the principal report 
of the committee. A report from an election committee, that one 
of the sitting members in the case before the committee had been 
guilty of bribery and corruption ; ^ a report from a select commit- 
tee, that parts of the evidence taken by it had been published 
improperly ; * a report from a select committee, requesting the in- 
structions of the house, as to the authority of the committee, or the 
proper course for it to proceed;^ are examples of incidental or 
special reports. 

1946. "When a committee is authorized to report fr-om time to 
time, and the subject-matter referred to its consideration is one 
which admits or requires more than a single report, the committee 
is at liberty to make as many reports as it may think proper, and 
at convenient intervals as it makes progress in the business referred 
to its consideration. 

1947. Besides reports, properly so called, committees fr-equently 
direct their chauTaan to make motions in the house, either in ref- 
erence to the subject-matter referred to the committee, or to some 
incidental matter connected ^^■ith or growdng out of the principal 
subject. The direction fr-equently given to the chafrman of a com- 
mittee, to move the house that leave be granted for bringing in a 
bill, is an example of the former. A direction to move for leave to 
send for persons, papers, and records, or, that the committee may 
report fr-om time to time, is an example of the latter. Motions of 

1 Hans. (1), XYU. 1, 6, 8, 10. 

2 Cong. Globe, XV. 564. But see Lloyd's ^ Hans. (3), L 1042, 1043. 
Deb. n. 257, 258; J. of House, 31st Cong. 1st * Hans. (3), XXXVII. 1305. 
Sess. 1011, 1012. 5 Hans. (1), XXHI. 883. 



Chap. VIIL] reports of committees. 755 

this kind require previous notice,^ and are considered in every 
respect in the same manner as other motions. 

1948. A committee, as we have seen, has no other authority 
than to do as it is ordered by the house, or to report its opinion 
upon the subject referred to it, but it has no authority, unless ex- 
pressly conferred upon it, to report for the consideration of the 
house, any act of legislation, as a bill, or joint resolution. It is a 
common practice, however, in this country, to authorize a commit- 
tee to report by "bill, or bills, or otherwise." This authority is 
either conferred by the order for the appointment of the committee, 
or by some subsequent order, or more commonly by a standing 
order. In these cases, where a committee reports a bill, the biU 
may be either the report, or an addition to the report. In either 
case, the reception of the report of the committee is equivalent to 
the reception of the biU of the house, in the same manner as if 
presented by its order. 

1949. Where the functions of a committee are not merely cleri- 
cal, or the paper before it does not originate with itself, it has no 
authority to erase or add to the paper before it, but must set down 
its amendments even where directed by the house to make them in 
its report ; but with this exception, the committee has fuU power 
over the paper committed to it, if any, though they cannot change 
the title or the subject.^ 



CHAPTER EIGHTH. 

OF MAKING THE REPORT AND PROCEEDINGS THEREON. 

1950. When a report is to be made fi*om a committee, the chair- 
man, or other member charged with the duty of making it, rises in 
his place, and addressing the speaker, and being responded to by 
him, informs the house, that he is directed by such a committee, to 
report the matter to the house ; and thereupon reads, or is supposed 
to read the report in his place ; he then appears and takes his seat 
at the bar, with the report and other papers in his hand. The 

1 Pari. Reg. LX. 391, 395, 396. Cong. Globe, 2 Jefferson's Manual, Sec. XXVI. 

XI. 319, 324. 



756 LEGISLATIVE ASSEMBLIES. [PaRT VII, 

speaker, seeing him there, inquires what he holds in his hand ? The 
member answers that it is the report of such a committee. There- 
upon a motion is made, or supposed to be made, either by the 
member himself, or by some other, and a question put, that the re- 
port be brought up to the table, or, in other words, that it be 
received.^ 

1951. Where the reporter from a committee, who may either be 
the chairman, or some other member dkected by the committee, 
reports a series of resolutions, or other papers originating with the 
committee, he reports it in a clean draft, vAih aU the amendments, 
if any, which have been adopted, duly ^T:itten in ; but where he 
reports amendments to a bill or other paper, which is referred by 
the house to the committee, in making the report, he reads the 
amendments v^th the coherence in the papers, and opens the alter- 
ations, and the reasons for the amendments, until he has gone 
through with the whole. He then dehvers in the bill or other 
paper at the clerk's table, when the amendments are read by the 
clerk, without the coherence, whereupon the papers lie, till the 
house at its convenience proceeds \\dth the business.^ 

1952. On the question of bringing up the report, it is competent 
to any member to object to receiving the report on the ground of 
any irregularity, either of form, as, for example, that the report is 
fuU of erasures and interlineations,-^ or, of substance, as, for exam- 
ple, that it is not within the powers of the committee ; ^ or to go 
into a general debate of the subject-matter ; but it is not in order 
to move to amend the report ; it must either be received or rejected, 
as it is ; ^ and no motion, except for recommitment,^ can be made 
in relation to it, until it has been received.'^ 

1953. The practice in this country, in making a report, is some- 
what different. There is no formality of going to the bar and 
bringing up reports from thence. Whenever the chairman or 
other member of the committee is ready to report, he obtains pos- 
session of the house, or is called to by the speaker, for the pur- 
pose, and announces that he has a report from such a committee. 
He thereupon proceeds in his place to read the report in question. 
If the report is objected to by anybody, either on the ground of 
form, as not being properly prepared, according to the orders of the 
house, or of substance, as not being within the jurisdiction of the 

1 See Com. Jour. XV. 102, 189. « Hans. (3), XV. 524. 

2 Jefferson's Manual, Sec. XX\TI. « Hans. (1), XVIL 1, 6, 8, 10. 
» Hans. (1), X\TI. 1, 6, 8, 10. 7 Pari. Keg. LXV. 153. 

* Pari. Eeg. (2), XXI. 505 



Chap. VIIL] reports of committees. 757 

committee, this raises the question of the reception. If the objec- 
tion is on the ground of order, a question is presented in the first 
instance for the presiding officer to decide. If the ground of order 
is overruled, or the report is suffered to proceed notwithstanding, 
or a suspension of the rules takes place, then the question of re- 
ception is to be put to the house or supposed to be so, and if de- 
cided in the affirmative, the report is accordingly received and 
further proceedings had thereon. If the objection is not one of 
order, the question of reception is to be put at once to the house. 

1954. If this question should be decided simply in the negative, 
of which there are instances,^ it is not apparent what the precise 
effect of the decision would be, — whether the committee would 
be discharged,^ and the matter there stop, — or whether the refus- 
ing to receive the report would be equivalent to a recommitment ; 
but, at all events, if the decision were upon the ground of an infor- 
mality in the report, it would undoubtedly be followed by a recom- 
mitment. 

1955. If the question is decided in the affirmative, the chairman 
then brings up the report, and delivers it In at the clerk's table. 
The next step, in the regular course of proceedings, is, for a mo- 
tion to be made, usually by the reporter, and a question put, " that 
the report be now read." On this question, the same proceedings 
may take place as on the former motion, that the report be 
brought up. But, according to the practice in modern times, this 
question is only supposed to be put, being, in point of fact, omit- 
ted, and the report read, without a question. If the question of 
reading should be made, and decided in the negative, it does not 
appear that any other motion could be made with reference to the 
report, but to recommit it. No other motion, it seems, could be 
made in the regular course of proceeding, without first reading the 
report. 

1956. The proceedings with reference to a report are the same, 
whatever the form of it may be, until it is brought up and read 
and the house has proceeded to take it into consideration. After 
this point, the proceedings may be different according as the re- 
port concludes or not, with resolutions or other propositions, which 
are reported for the purpose of being acted upon and agreed to by 
the house. The proceedings, if any, which take place between the 

» Coram. Jour. XV. 189. committee would be Junctus officio, unlesi 

* If this were the tinal report of the commit)- revived. 
tee which had adjourned without day, the 

64 



758 LEGISLATIVE ASSEMBLIES. [PaET VIL 

bringing up and the consideration of the report, are also the same, 
without regard to the form of the report. 

1957. When a report is brought up and read, there are several 
courses of proceeding which may be adopted: — 1. No inotion 
whatever may be made in reference to it, in which case, it remains 
to be taken into consideration afterwards, whenever the house 
may think proper ; 2. It may be ordered, on motion, to lie on the 
table, either generally, in which case, no other order can regularly 
be made in reference to it, on the same day, or specially, until 
some specified time, in which case, no order can be made till that 
time ; 3. A motion may be made for taking it into consideration 
on a futiu'e day. This motion may be so framed, by naming a day 
beyond the session, as to amount, if it is carried, to a defeat of 
the measure ; or if the day named be vidthin the session, it may be 
amended into a day beyond the session ; and, in either case, the 
motion may be amended, so as to become a motion for present 
consideration ; 4. A motion may be made for the recommitment of 
the report ; or, 5. If neither of these courses is pursued, the house 
may proceed with the consideration of the report. The manner of 
proceeding may then be different, as already observed, according as 
the report contains or not resolutions or other propositions, for the 
consideration of the house. 

1958. If the report does not conclude with or contain any reso- 
lution or other propositions, for the consideration of the house, or 
such only as do not requii-e to be agreed to by the house, it does 
not appear, that any further proceedings in reference to it, as a re- 
port, are necessary. It remains in the possession and on the jour- 
nals or files of the house, as a basis or ground for such further pro- 
ceedings, as may be proper or necessary. Resolutions of opinion 
may be moved upon it ; or a motion for leave to bring in a bill 
may be predicated upon the facts stated in it ; or it may be referred 
to another committee for their consideration ; or it is presumed, it 
may be amended. Reports of this description contain a statement 
of the facts, or of the evidence merely relating to the subject of in- 
quiry, and are not accompanied by any resolutions or other propo- 
sitions, for the consideration of the house. A resolution, that, in 
the opinion of the committee, petitioners have fully proved the facts 
set forth in their petition, — or, that the house be moved that leave 
be granted for a bill to be brought in, — are not resolutions, which 
require to be agreed to, in that form, by the house. 

1959. If the report concludes with or is accompanied by resolu- 
tions or other propositions, wMch are proper or necessary for the 



Chap. VIIL] reports of committees. 759 

consideration and adoption of the house ; or if it consists of such 
resolutions or propositions alone, as is the case with the reports of 
committees of the whole ; — the report being brought up and read, 
and thus brought before the house, there are several different ways 
of proceeding with it which may be adopted, namely, the first., sec- 
ond, third, and fourth of the courses already indicated ; or, fifth, it 
may be proceeded with, in which case, the appropriate motion is, 
that the report be read a second time. 

1960. The motion for reading the report a second time may be 
simply negatived, in which case, it is competent for the house to 
dispose of the report in either of the ways above mentioned ; or it 
may be amended, by substituting for present reading a motion for 
the second reading within or beyond the session, and in this form 
agreed to or negatived ; or, lastly, the motion may be agi'eed to, in 
which case, the resolutions are read in then- order ; and, as each 
resolution is read, a motion may be made, that the house agree to 
it ; or, 2, that the resolution be amended ; or, 3, that it be recom- 
mitted ; or, 4, that it be postponed, that is, give place to those sub- 
sequent to it. 

1. If the resolution is agreed to, it then becomes the act of the 
house, and a ground for further proceedings, according to its nature ; 
if disagreed to, there is an end of the matter. 

2. If the resolution is amended, or the motion to amend is 
rejected, either of the other motions may then be made. 

3. The effect of a recommitment will be presently stated. If the 
motion to recommit is negatived, any of the other motions above 
enumerated, not abeady put and negatived, may be made. 

4. If a motion to postpone is carried, the resolution so postponed 
.nay be afterwards considered, or suffered to remain. 

1961. When any one of these motions is made and pending, any 
ot the others may be substituted for it, by way of amendment ; thus 
on the motion for agreeing to the first resolution, it may be moved 
to amend the motion by leaving out all but the word " that," in 
order to insert a motion for a recommitment, or amendment, or 
postponement. 

1962. On aU the motions above mentioned, which affect the 
whole report, as for example, that it lie on the table, or that the 
resolutions be read a second time, it is in order to enter into a 
debate of the whole subject embraced in the report; ^ and it is not 
strictly regular, on any such motion, to make objections to a single 

I Pari. Eeg. (3), XVIII. 415, 416. 



760 LEGISLATIVE ASSEMBLIES. [PaRT VjIL 

resolution, for the purpose of showing that it ought to be amended, 
or recommitted, or rejected.^ On the other hand, on all questions 
which relate to the resolutions individually, as, for example, on the 
motion, that a particular resolution be agreed to, it is not strictly- 
regular to go into a general line of argument, as to the whole 
report ; but the debate should be confined to the particular resolu- 
tion mider consideration.^ These rules, however, must always be 
qualified, in their application, by the general rules relating to rele- 
vancy in debate. 

1963. It is in order, at any time, before resolutions are agreed to, 
to recommit the whole, or any one or more of them.^ But, if this 
motion is made whilst any other motion, as, for example, a motion 
that the report lie on the table, is pending, the motion to recommit 
must be considered and put as an amendment to the motion pend- 
ing.^ 

1964. The effect of a recommitment, for any cause, is to undo 
all that has previously been done in the house, with reference to 
the report, and to throw back the subject into the hands of the 
committee for their re^dsion or completion, or for whatever other 
purpose the recommitment may be ordered, as for the purpose 
merely of revision,^ or of being taken into a new draft ; ^ though, of 
course, it does not impose upon the committee any obligation to 
go again over the whole matter, or to reexamine the witnesses 
already fully and properly examined. A recommitment generally 
takes place for some cause, which sufiiciently indicates to the com- 
mittee what they are expected to do, and, hence, it is not usual for 
instructions to be given on reconunitment ; but the committee are 
to gather from the sense of the house in their proceedings what 
method they are to pursue." "When a report is thus recommitted, 
the committee, with all its powers, appears to be thereby revived ; 
and it is only necessary to appoint a time for the committee to sit. 
The report made by a committee upon recommitment is sometimes 
called an amendatory,^ or a revisionary report.^ 

1965. It is, of course, competent for the house, at any time 
before the resolutions are agreed to, to adjourn the debate, or to 



1 Pari. Eeg. XVTI. 214; Same, XLHL 632; ^ j. of C. Yl. 128. 

Same, L'SH. 658. ^ Pari. Eeg. XIX. 195, 230; Hans. (1), V 

2 Pari. Reg. LXU. 122; Same, LVI. 6.o8. 163. 

3 Pari. Eeg. XIX. 195, 230; Hans. (1), V. « J. of H. II. 127; Same, IV. 132; Same 
163. "VTI. 78. 

* Hans. (1), X^^L 171, 175. 8 J. of H. I. 704. 
» J. of C. VL 208. 



Chap. VIIL] reports of committees. 761 

order the report to be taken into further consideration, on a subse- 
quent day. 

1966. Resolutions, reported by a committee, and agreed to by 
the house, are grounds for the house to proceed upon, without any 
further investigation.^ 

1967. It is hardly necessary to observe that a report may be 
dealt with in parts ; thus, a part of a report may be ordered to lie 
on the table,- or a part of it recommitted,^ disagreed to,* or agreed to.^ 
The whole report, being under consideration, must, of course, be dis- 
posed of in some regular parliamentary manner. 

1968. According to a practice begun in congress about thirty 
years ago, and now prevailing in all our legislative assemblies, 
though it is not known to the parliamentary law of Great Britain, 
the views of those members of a committee, who do not concur in 
the report, are allowed to be presented to the house to which such 
committee belongs. These documents, under the somewhat incon- 
gruous name of minority reports, may emanate from any one or all, 
or any two or more, of the members of the minority of the com- 
mittee, and may be presented when the report is made, or after- 
wards, or even before. They are received by the courtesy of the 
house, expressed by the ordinary vote of a majority,^ and usually 
receive the same destination with the report ; that is, they are 
printed, postponed, and considered in the same manner. But they 
are not, in any parliamentary sense, reports, nor entitled to any 
privilege as such; and their only effect is, in the first place, to 
operate upon the minds of members as arguments, and, secondly, 
to serve as the basis for amendments to be moved on the reso- 
lutions, or other conclusions, of the report. K they contain or rec- 
ommend a bill, it is read not as a biU, but as a part of the report, 
and for the information of the house.^ 

1 Pari. Reg. (2), XVm. 23. » J. of H. I. 451. 

« J. of H. I. 281. 6 Cong. Globe, VIII. 257. 

3 J. of C. IV. 415. 1 J. of H. 24th Cong. 1st Sess. 561; Cong. 

* J. of H. I. 194, 381. Globe, XI. 248 ; Same, 815 ; Same, XXI. 1345. 

64* 



LAW AND PRACTICE 



OF 



LEGISLATIVE ASSEMBLIES. 



PAET SEVENTH. 

OF COMMITTEES AND THEIR FUNCTIONS. 



SECOND DIVISION. 

COMMITTEES OF THE WHOLE. 

1969. Committees of the whole house are composed of aU the 
members, and sit in the house, while the house is sitting.^ Select' 
committees, as has already been seen, consist of a small number 
of members only, who sit apart from the house, though in rooms 
belonging to the house, while the house is not sitting. These dif- 
ferences in the constitution of the two kinds of committees are 
accompanied by corresponding differences in their nature, functions, 
and proceedings. While, therefore, as committees, they possess 
many points of resemblance ; as bodies differently constituted and 
for different purposes, they present many points of dissimilarity. 
These differences will appear in what is now to be said of com- 
mittees of the whole. 

1 Appendix, XV. 

^^ (763) 



764 LEGISLATIVE ASSEMBLIES. [PaRT VIL 



CHAPTER FIRST. 

APPOINTMENT OP A COMMITTEE OP THE WHOLE. 

1970. In order to the appointment of a committee of the whole, 
it is necessary that the house should resolve, first, that a particular 
subject be referred to the consideration of a committee of the 
whole house, and also, that on a day named, or forthwith, it will 
resolve itself into a committee of the whole house upon, or to con- 
sider of, that subject. The latter resolution is equivalent both to 
the naming of the members to constitute a select committee, and 
to the order directing the time and place of their meeting. 



CHAPTER SECOND. 

SITTING OF A COMMITTEE OP THE WHOLE. 

1971. A committee of the whole, besides being constituted of all 
the individual members, is also to be formed by an act of the house 
itself.i It is, consequently, not competent for the members to 
assemble themselves together at the time appointed and to proceed 
as a committee ; but the house must be regularly met and sitting, 
at the time appointed, in order that it may then resolve itself into the 
committee, agreeable to its previous resolution. According to the 
practice of the senate of the United States, that body is not always 
formed into a committee of the whole, but merely resolves that a 
particular matter pending therein shall be considered as in a com- 
mittee of the whole. In this case, no chairman is appointed, but 
the matter in question is considered as in a committee, and after- 
wards reported upon to the senate, and proceeded with accordingly. 
This is what Mr. Jefferson speaks of as a quasi-committee. 

1 Jefferson's Manual, Sec. XXX. 



Chap. III.] chairman and clerk of the committee. V65 

1972. An order, for the appointment of a committee of the 
whole, may be rescinded or discharged at any time after its adop- 
tion ; in which case, the matter referred to its consideration imme- 
diately resumes its place, which it would otherwise have occupied 
in the business of the assembly.^ 

1973. The house being regularly met and sitting, on the day 
appointed for the committee to sit, the course of proceeding, for 
resolving into the committee, is, in the first place, to move that the 
order of the day for going into the committee be read, and this 
motion being decided in the affirmative, and the order read accord- 
ingly, a motion is then to be made, that the speaker do now leave 
the chair. If this motion is carried, the speaker leaves the chair of 
the house, and the chair of the clerk, which is the chair of the com- 
mittee, is taken by some member, and the house is then resolved 
into the committee. 

1974. At the same time, that the speaker leaves the chair, the 
sergeant-at-arms removes the mace from the table, and places it 
under the table, where it remains, while the house is in committee. 
If the resolution of the house is for going immediately into the com- 
mittee, the motion for the speaker to leave the chair follows at 
once. 



CHAPTER THIRD. 

CHAIRMAN AM) CLERK OP THE COMMITTEE. 

1975. When the speaker leaves the chair, some one of the mem- 
bers is called by the house to take the chair of the committee, and 
if no other member is named, the member so called takes the chair 
as a matter of course; but if there is any opposition to such 
member, that is, if any other member is called to the chair, the 
speaker thereupon resumes the chair of the house at once, and 
the house proceeds, upon nomination, to appoint a chairman for the 



1 Where a committee of the whole, to whom named bill, it was held, that the committee 

a bill had been referred, and to whom also was thereby dissolved. J. of H. 16th Cong, 

another bill has been afterwards weferred, was 1st Sess. 277. 
discharged from the consideration of the first- 



766 LEGISLATIVE ASSEMBLIES. [PaRT VIL 

committee ^ A chairman being thus appointed, the speaker again 
leaves the chair of the house, and the former takes the chair 
of the committee. 

1976. When the house of commons is in committee of the 
whole, — the chairman then occupying the chair of the clerk, — it 
has always been the practice for the clerk assistant, alone, and not 
the clerk, to act as clerk of the committee, and to make out its 
reports .2 

1977. The proceedings of a committee of the whole, like those 
of other committees, are not recorded on the journal of the house, 
according to the ordinary course of parliament. But, on the 23d 
of February, 1829, the house of commons assented to a suggestion 
of the speaker, that the proceedings in committee ought to be 
entered on the journal, and arrangements were accordingly made for 
that purpose ; since which time, the proceedings of that house in 
committee are regularly recorded.^ 

1978. Li the house of commons, the member, who is appointed 
to the chair, when the house is resolved into a committee of sup- 
ply, on the first occasion for resohdng into that committee, is con- 
sidered as the chairman of committees during the session, and takes 
the chair generally whenever the house resolves itself into a com- 
mittee of the whole.* In the house of lords, a chairman of com- 
mittees is appointed, at the commencement of each session, in 
pursuance of a standing order, whose duty it is to take the chair, in 
all committees of the whole house, unless the house shaU otherwise 
direct.^ 

1979. The duties of the chairman of a committee of the whole 
in the commons are analogous to those of the speaker, whilst the 
house is sitting, and, in the house of lords, to those of the lord 
chancellor ; to receive motions, put questions, announce the result 
of divisions, and, generally, to conduct the proceedings and to pre- 

1 Comm. Jour. XTV. 455. In this country, mittees are deemed so important, in the house 
it is common to provide, by a special rule, of commons, that from the time of the revolti- 
that the speaker or other presiding officer tion until the commencement of the present 
shall appoint the chairman of committees of century, the member by "svhom they were 
the whole. discharged received an annual salary; and 

2 Hatsell, n. 273, 274; May, 295. It is since the latter period he has received com- 
from this circumstance, says Mr. Hatsell, that pensation for his services, in the form of a 
the office of clerk assistant is much the most grant of money, at the end of every session. 
laborious of the two, as the principal business Hans. (1), VIH. 230, 231. By a standing oj> 
of the house of commons is generally carried der of the 4th Aug. 1S53, the chainnan of the 
en in committees. committee of ways and means is appointed to 

s ilay, 294. take the chau" of the house, as speaker pro 

* May, 415. tempore, during the unavoidable absence of 

* May, 286. The duties of chairman of com- the speaker. 



Chap. IV.] speaker and other officers while in committee. 767 

serve order in the committee, as its presiding officer ; and, on the 
rising of the committee, to make its report to the house, together 
with such motions as the committee may direct him to make. 

1980. The duties of the chairman of committees of the house of 
commons make it necessary that the person who holds it should 
be prepared with a fuU knowledge of the business of the house, 
and all its public duties ; that he should be acquainted with and 
explain its orders, M^'hen in a committee ; and that he should attend 
from the sitting of the house to its rising. To discharge these du- 
ties requires time, attention, ability, and a great deal of personal 
labor.^ 



CHAPTER FOURTH. 

DUTIES OF THE SPEAKER AND OTHER OFFICERS OF THE HOUSE, 
WHILE THE HOUSE IS IN COMMITTEE OF THE WHOLE. 

1981. As a committee of the whole can only sit while the house 
is sitting, — being in fact the house itself sitting in committee, — 
it is necessary that the speaker should be constantly present in the 
committee, and take official notice of its proceedings, in order to 
resume the chair of the house, whenever the committee shall see 
fit to rise and report ; or, to resume it without any direction of the 
committee, when any public business shall arise in which the 
house is concerned,^ or when notice is taken, and it appears, that 
a quorum of the committee is not present ; or in case any sudden 
disorder should occur, which the committee, as such, would have 
no power to suppress. For the same reason, the other officers of 
the house, — the sergeant-at-arms, clerk, etc., — should also be 
present, in order to resume their functions, the moment the chair 
is taken by the speaker. It is for this reason, also, that the chair- 
man of the committee does not occupy the chair of the house, but 
that of the clerk, at the table. It is thus in the power of the speaker, 
whenever the exigency requires it, to take the chair at once, and 

1 Hans. (1), Vin. 230, 231. executive, if one is announced whilst the 

' In our legislative assemblies, the speaker house is in committee. When in the chair of 

resumes the chair informally to receive a the house, he may be detained there by the 

message from the other branch or from the intervention of other business. 



768 LEGISLATIVE ASSEMBLIES. [PaUT VII 

resume the house. The following are examples of proceedings of 
this description. 

1982. K any doubt should arise in the committee, as to a point 
of order, or other proceeding, which the committee cannot agree 
upon, or which may appear to be beyond their pro^dnce to decide, 
the course is to direct the chairman to leave the chair, report pro- 
gress, and ask leave to sit again, for the purpose of obtaining the in- 
struction or direction of the house in reference to the matter in ques- 
tion. Thus, on the 2d March, 1836, a debate ha\dng concluded in 
committee, the chairman stated, that before he put the question, he 
■\^dshed to have the opinion of the committee as to the manner in 
which the committee should be divided, in case of a division ; and 
it being the opinion of the committee, that that matter ought to be 
decided by the house, the chairman left the chair ; and IMr. Speaker 
having resumed the chair, the chairman reported that a point of 
order had arisen in the committee, with respect to the manner in 
which the committee should be di^dded, upon which the committee 
wished to be instructed by the house. The house proceeded to 
consider this point, and Mr. Speaker having been requested to 
give his opinion, stated it to the house ; after which the house 
again resolved itself into the committee, the question was imme- 
diately put, and the committee divided in the manner pointed out 
by the speaker." ^ 

1983. If any public business should arise in the commons, in 
which the house is concerned, as if the house should be summoned 
to attend the queen or lords commissioners in the house of peers, 
or if the time has arrived for holding a conference with the lords, 
the speaker resumes the chair at once, \\dthout any report from the 
committee. 

1984. So, also, if any sudden disorder should occur, by Tvhich 
the honor and dignity of the house are likely to be affected, the 
speaker would be justified in resuming the chair immediately, with- 
out waiting for the ordinary forms. The foUowdng is an instance 
of this proceeding, wnich occurred in one of the parliaments of 
Charles IL, during the speakership of Sir Edward Seymour. " On 
the 10th May, 1675, a serious disturbance arose in a grand com- 
mittee, in which bloodshed was threatened ; when it is related 
that ' the speaker very opportunely and prudently rising from his 
seat near the bar, in a resolute and slow pace, made his three re- 
spects through the crowd, and took the chair.' The mace having 

1 Comm. Jour. XCI. 104; May, 290, 



Chap. V.] on going into a committee of the whole. 769 

been forcibly laid upon the table, all the disorder ceased, and the 
gentlemen went to their places. The speaker being sat spoke to 
this purpose : ' That to bring the house into order again, he took 
the chair, though not according to order.' No other entry appears 
in the journal than that ' Mr. Speaker resumed the chair;' but the 
same report adds, that though ' some gentlemen excepted against 
his coming into the chair, the doing it was generally approved as 
the only expedient to suppress the disorder.' " ^ 

1985. A similar case has occurred more recently in the house of 
commons. " On the 27th February, 1810, a member who, for dis- 
orderly conduct, had been ordered into custody, returned into the 
house during the sitting of a committee, in a very violent and dis- 
orderly manner ; upon which Mr. Speaker resumed the chair, and 
ordered the sergeant to do his duty. When the member had been 
removed by the sergeant, the house again resolved itself into the 
committee." ^ 

1986. The house has also been resumed on account of words 
of heat or dispute between members.^ 



CHAPTER FIFTH. 

PEOCEEDINGS ON GOING INTO A COMMITTEE OF THE WHOLE. 

1987. A committee of the whole being usually appointed by a 
previous resolution, that the house will, on a certain future day, re- 
solve itself into a committee of the whole, for the consideration of 
the subject in question, — which resolution is thus an order of the 
day for the day assigned, — when that day arrives, and the house 
is sitting, the first step is for a motion to be made, that the order 
of the day, for going into the committee, be read. If no such 
motion is made, or if made and negatived, the order drops ; in 
which case, the reference of the subject to a committee of the 

1 Grey, IH. 129; May, 291. 1st Sess. 488, 846, 847; Cong. Globe, VI. 422; 

" Comm. Jour. LXV. 134 ; May, 292. The Same, Vni. 343. 

same practice prevails here. See J. of H. ' Comm. Jour. X. 806; Same, XI. 480} 

25th Cong. 2d Sess. 1012, 1013,1014: Same, Same, XLIH. 467 1 May, 292. 
•Wth Cong. 1st Sess. 814; Same, 27th Cong. 

65 



770 LEGISLATIVE ASSEMBLIES. [PaET VII. 

whole remains a subsisting order of the house, to be carried into 
execution at such other time as the house may think proper. If 
the motion is decided in the affirmative, the order is read, and the 
business which it contemplates is thus brought under the considera- 
tion of the house. The order being read, the house may either, 
1, drop it ; 2, discharge it ; 3, postpone it ; or, 4, proceed with it. 

1988. I. K the house does not think proper to proceed ^^-ith the 
business at that time, or to fix. upon any future day for its consid- 
eration, the course is to let the order drop, v,"ithout making any 
motion in reference to it. The business then stands precisely as if 
the house had resolved to refer the matter to a committee of the 
whole, and had stopped there, Vvdthout appointing any time for 
resolving into the committee. 

1989. II. K the house thinks proper to 'withdraw a subject from 
the consideration of a committee of the whole, the course is to 
move that the order be discharged. If this motion is decided in 
the affirmative, the subject is then in the same predicament as 
before the order was made. 

1990. III. If the house thinks proper to proceed with the order, 
but not until some future day, the course is to renew the order for 
such future day as may be agreed on, by a motion for that purpose. 
If this motion is decided in the affirmative, the business is then in 
the same situation as if the time so resolved upon had been orig- 
inally resolved upon for going into the committee. 

1991. IV. K the house thinks proper to proceed with the order, 
the course is to move, that the speaker do now leave the chair ; 
and if this motion is decided in the affii-mative, the speaker leaves 
the chan, and the committee proceeds with the business referred to 
it. But, upon this motion, it is still in the power of the house to 
drop the order or to postpone it to a future day. If the motion is 
decided in the negative, that is, that the speaker do not now leave the 
chair, and no further motion is made, the order drops. The effect 
of this is, that the house camiot resolve itself into the committee 
on the same day ; and that the business stands in the same posi- 
tion, as if no order had been made for the appointment of the com- 
mittee ; but the order may be renewed at any time for a future day. 
The committee may also be postponed on this motion, without first 
deciding it in the negative, by means of an amendment. The 
motion being, " that the speaker do now leave the chair," a motion 
may be made to amend by leading out all the words of the motion 
except the word " that," in order to insert the words "the hous«» 



Chap. VL] proceedings in committee of the whole. 771 

will," on such a day, " resolve itself into the said committee." ^ 
This amendment may be so worded, either originally or by means 
of an amendment, as to postpone the committee to a day beyond 
the session ; in which case, the measure is defeated altogether. 

1992. When the order of the day for going into the committee 
has been read, and before the motion is made that the speaker do 
now leave the chair, the proper time occurs for moving instructions 
to the committee, and for referring petitions and other papers con- 
nected with the subject, to its consideration. If the motion for the 
speaker to leave the chair is first made, it must be withdrawn be- 
fore a motion to instruct or refer can be made, unless the latter is 
put as an amendment, that is, that all the words of the motion but 
the word " that," be left out, in order to insert the instruction or 
reference as a substitute. This is the proper time, also, when there 
is to be a hearing before the committee, for the witnesses and coun- 
sel to be called in.^ 

1993. When the motion has been put and agreed to, that the 
speaker do now leave the chau", it is not in order for any member 
to speak ; either addressing himself to the speaker, before he has 
left the chair,^ or to the clerk after he has left it.'^ When the house 
has resolved itself into the committee, and the chairman has taken 
the chair, he proceeds to lay before the committee the business 
referred to it. 



■ CHAPTER SIXTH. 

OF THE PROCEEDINGS IN COMMITTEE OF THE WHOLE. 

1994. The general rule, in regard to the forms of proceeding in 
committees, both select and of the whole, is, that they are regulated 
by the same rules, in substance, by which analogous proceedings 
of the house to which they belong are regulated.^ Business pro- 
ceeds therein by means of motions and resolutions ; questions are 

1 Hans. (3) IX. 675. same, or a rule analogous to it, is very cora- 

2 Pari. Reg. (2,) XVH. 152. monly inserted in the rules and orders of other 
« Hans. (3), LX. 647. legislative assemblies, that, "The rules of 
* Hans. (1), XV. 302, 303. proceedings in the house shall be observed in 
' It is provided, by a rule, in the house of a committee of the whole house, so far as 

representatives of the United States, and the they may be applicable." 



772 LEGISLATIVE ASSEMBLIES. [PaET VIL 

put and taken ; divisions take place and the rules of proceeding 
and debate are observed ; in substantially the same manner, as in 
the house. Committees of the whole differ, in many respects, from 
the house. The differences, between the proceedings of committees 
of the whole and those of select committees, on the one hand, and 
those of the house, on the other, will appear in what follows. 



Section I. Quorum. 

1995. A committee of the whole house consisting of aU the 
members, the rule as to the number necessary to be present, in order 
to make a house, has been extended to committees of the whole. 
If, therefore, it should appear, at any time, that the number of mem- 
bers present is less than a quorum, (to be ascertained in the same 
noianner as in the house,) that is, in the commons, forty, and in the 
lords, three, the chairman must immediately leave the chair of the 
committee, and the speaker resume that of the house. The chair- 
man, then, by way of report, for he can make no other, informs the 
speaker of the cause of the dissolution of the committee. When 
the speaker is thus informed of the "want of a quorum in the com- 
mittee, he immediately proceeds in the same manner to determine 
whether there is a quorum then present in the house. If a quorum 
should appear to be present, the house may immediately, (and this 
is the usual course,) resolve itself again into the committee and 
proceed with the business. K a quorum should not appear to be 
present, the speaker adjourns the house, in the same manner, as 
when the number of members present falls below forty during the 
sitting of the house.^ 



Section IL Authority of the Committee. 

1996. A committee of the whole, like other committees, deriving 
its authority solely from the resolutions and votes of the house, is, 
in like manner, confined within the powers delegated to it, and can- 
not consider any other matters than those which have been regu- 
larly committed to it, or in any other manner, than it is authorized, 
l)y the house. 

1 May, 292. In our assemblies, the same the house, a quoram does not appear to be 

rule prevails as to the necessity of a quorum, present, the speaker either adjourns the house, 

and the number of members to constitute it or waits for a motloj\ to that effect, as in other 

in committee of the whole. If on resuming; cases. 



Chap. VI.] proceedings in committee of the whole. 773 

1997. It is a consequence of this principle, that a motion for the 
previous question is not admissible in committee of the whole ; 
inasmuch, as if the subject of a motion is not within the authority 
of the committee to consider, it may be suppressed on the ground 
of order ; and, if within its authority, the consideration of it ought 
not to be suppressed at all.^ 

1998. It is a consequence of the same principle, that a commit- 
tee of the whole cannot punish any of its members, or any other 
person, for disobedience to its orders, disregard of its authority, or 
disorderly conduct or words, in its presence ; nor can it determine 
upon the form of proceeding which it ought to pursue when any 
question arises ; in all which cases the matter should be reported to 
the house, to be determined upon or proceeded with there .^ 

1999. At the period when the grand committees for trade, griev- 
ances, courts of justice, etc., which were in fact committees of the 
whole house, were in use, the power to appoint subcommittees was 
considered as incident to them ; ^ but since these committees have 
been laid aside in practice, now nearly two hundred years, it has 
been held to be an established principle of parliamentary law, ap- 
plicable alike to all committees, that, possessing only a delegated 
power themselves, they cannot delegate it even to their own mem- 
bers as a subcommittee.'^ A committee of the whole may, how- 
ever, by way of report, direct their chairman to move the house for 
the appointment of a select committee, with such powers as may 
be deemed necessary to take a particular subject into consider- 
ation.^ 



Section III. Making Motions, and Speaking in Committee op 

THE Whole. 

2000. It is a rule, practically observed in committees of the 
whole, that a motion need not be seconded ; but this rule has never 
been distinctly declared or recognized, as such ; the propriety of it 
is sometimes questioned; and it is quite certain, that there is as 
much reason for requiring a motion to be seconded when made in 
committee, as when made in the house.*^ It is the custom, how- 

1 May, 289. < Hans. (1), XXXIX. 776, 777. 

2 May, 296; Hans. (3), XXXIV. 656; Hat- 5 Parl. Recr. XLII. 81. See also Hans. (1), 
sell, II. 270, 271, note; Comm. Deb. VL 161. XII. 651. See also Lloj-d's Deb. 131; Ann. of 
See also J. of H. 24th Cong. 1st Sess. 1209; Cong. I. 122; Cong. Glebe, XV. 32. 

Cons. Globe, III. 484. « Hatsell, II. 112. not(. 

3 Rushworth, IV. 19. 

65* 



774 LEGISLATIVE ASSEMBLIES. [PaET VII. 

ever, as before remarked, to put a question on the motion of a sin- 
gle member.^ It may be mentioned here that there can be no 
motion made in committees of the whole to lie on the table,^ or to 
postpone indefinitely, or to a day certain. The only postponement 
that can take place is, to transpose the order of considering by par- 
agraphs."^ Neither can a committee of the Vv^hole entertain any 
matter of privilege,* or order any questions pending therein to be 
taken by yeas and nays.^ Nor is it competent for a committee of 
the whole to reconsider a vote.^ .This, like the same principle in 
jegard to select committees, stands upon a somewhat narrow inter- 
pretation of a common principle of parliamentary law. 

2001. In committees of the whole, the rule that no member shall 
speak more than once to the same question, does not hold ; every 
member may, therefore, if he can obtain the floor, speak as many 
times as he thinks proper, or as may be necessary, fully to explain 
his views in reference to the topic under consideration ; and this 
constitutes the main difference betvi^een the proceedings of a com- 
mittee and those of the house. It is by means of this facility of 
speaking that the details of a bUl, or other measure, are subjected 
to the most minute and thorough examination, at the least expense 
of time ; for, when a member can speak only once, he cannot safely 
omit any argument which he may be called upon to present under 
any circumstances ; but when he is at liberty to speak as many 
times as he pleases, he may confine his remarks to such points only 
as arise or are suggested, without taking up any time with those in 
reference to ^vhich no question is made." 

2002. In regard to the personal deportment of members, whether 
addressing the committee, or otherwise, while the house is in com- 
mittee, — as, for example, the manner and place of speaking, ad- 
dressing the chair, observing silence, etc., — the same rules prevail 
as in the house. 

2003. It is an ancient order of the house of commons, " that 
where there comes a question between the greater or lesser sum, or 
the longer and shorter time, the least sum and the longest time 
ought first to be put to the question." This rule is more pecufiarly 
applicable to the committees of supply and of ways and means ; 
but is generally observed in committees upon biUs, and other com- 
mittees of the whole house. It creates an exception to the general 

1 May, 288. See Pari. Eeg. XII. 354, 357, * Cong. Globe, XXI. 1425. 

359, 363. 5 Cong. Globe, XIII. 618; Sanae, Vin. 285. 

^ Cong. Globe, XXIII. 645. 6 Cong. Globe, VL 423; Same, X. 305. 

« Cong. Globe, VIU. 285 ; Same, IV. 203. ' May, 289. 



Chap. VL] proceedings in committee of the whole. 775 

rule, by which it is the duty of the chairman to put the question 
upon each motion separately, and in the order in which they are 
moved ; and makes it his duty in the cases referred to, whichever 
sum or time may be first moved, to put the smaller sum or the 
longer time first to the question. The rule evidently had its origin 
in that period of parliamentary history, wlien it M^as the practice 
for the question to be taken by the speaker, or framed by him, from 
the turn of the debate, rather than from the motion of any particu- 
lar member ; and it was doubtless intended to control the speaker, 
in the exercise of his discretion, as to the question to be proposed, 
so as to secure to the house the freest exercise of its constitutional 
power, in regard to the burdens to be imposed upon the people ; 
the object of the rule being, " that the charge upon the people may 
be made as easy as possible." ^ Though the purpose of the rule 
has therefore ceased, the practice has been found to be convenient ; 
inasmuch as it sometimes enables the committee to dispose of two 
or more propositions, by the taking of one question; as, if the 
smaller sum is resolved in the affirmative, the point is settled at 
once, and no question is put upon the greater ; and, if in the nega- 
tive, the greater sum is generally agreed to without further opposi- 
tion. In this manner a direct negative of the larger sum is avoided, 
when the majority of the committee are averse to it; and it has 
been assigned as one of the merits of the rule, that the discourtesy " 
of refusing to grant a sum demanded by the crown is thereby miti- 
gated. The reason of the first part of the rule, namely, as to the 
sum, is obvious. The reason of the other part, as to the time, re- 
quiring the longest time to be first put, had reference to the ancient 
mode of granting subsidies, which were rendered a lighter burden 
on the subject, by being extended over a longer period. The pres- 
ent system of grants does not admit of the application of this part 
of the rule ; but its principle is still regarded in the committee of 

1 Jklr. May remarks, tipon the refipon given The speaker usually, if not always, belonged 

for the rule, that "how that desirable result to the court party; and having the right, in 

can be secured by putting one question before virtue of his office, to present which question 

the other, is not very apparent; for if the ma- he pleased out of several before the house at 

jority were in favor of the smaller sum, they the same time, he would always of course put 

would negative the greater when proposed." that which was most favorable to the sover- 

(May, 421.) But it seems very clear, taking eign ; and the members, many of them, 

hito consideration the period when the rule might not dare, or at any rate, might be very 

was introduced, in connection with the prac- unwilling, to vote against the larger sum, 

tice to which it evidently refers, that it lies at when distinctly proposed as a question by the 

the foundation of the great constitutional speaker, who would nevertheless avail them- 

right of the commons to be the exclusive selves of the privilege afforded them by the 

judge both of the amount and of the time of forms of parliament, to negative the larger by 

payment of every tax which they granted, voting for the lesser sum. 



775 LEGISLATIVE ASSEMBLIES. [PaRT VII. 

"U'ays and means, \\'henever the time, at which a tax shaU com- 
mence, is under discussion ; for the most distant time being most 
favorable to the people, the question for that time is jfirst put from 
the chair.i 



Section IV. Formal IMotioxs. 

2004. A committee of the T\^hole, having no power, as such, 
either to adjourn its own sittings, or to adjom-n a debate to a future 
day, but only to rise and terminate its sitting, on the same day, cer- 
tain formal motions, different firom any that take place in the house, 
are made use of for the purpose of disposing of the business before 
the committee. 

2005. If the matter referred to the committee is of such a nature 
that it does not admit of being reported upon in parts, and the 
committee has not concluded the consideration of it, at the usual 
time for the adjournment of the house, the proper course is, for the 
committee, on motion, to direct the chairman " to report progress, 
and ask leave to sit again." This is followed by a motion " that 
the chainxian do now leave the chair ; " which being carried, the 
chairman leaves the chair, — the house is resumed, — and the chair- 
man makes the report as directed by the committee. The former 
motion, being equivalent to a motion for an adjournment of the 
debate, in the house, supersedes whatever motion may be pending 
at the time, except a motion that the chairman do now leave the 
chair ; which, being equivalent to a motion to adjom-n, in the 
house, supersedes aU others. The debate, however, on the question 
pending, continues as before ; ^ precisely, as in the house, the debate 
continues on the main question, after a motion made to adjourn, or 
to adjom-n the debate. 

2006. When the committee has gone through -«'ith the business 
referred to it, the proper cotirse is, for the committee, on motion, to 
direct the chairman to report the resolutions or other proceedings to 
the house, and then to direct the chairman to leave the chair. 

2007. If the business of the committee is such as to admit of 
being reported upon, from time to time, in part, — Ts^hich is usually 
the case with the committees of supply and of ways and means, — 
the proper cotirse is for the committee, on motion, to direct the 

1 May, 358, 4-21. There is generally a rule, gives precedence to the largest, -instead of the 
in OUT assemblies, concerning the filling of least sum. 
blanks, similar to the above; but it usually ^ See also ante, § 2002, 



Chap. VL] proceedings in committee of the whole. 777 

shairman to report the resolutions, or other proceedings of the com- 
mittee, if there are any to report, at the end of each sitting, and, at 
the same time, to ask leave for the committee to sit again. 

2008. If the committee wish to dispose of the business referred 
to it, by proceeding no further in the matter, a motion may be 
made, " that the chairman do now leave the chair ; " which, if car- 
ried, prevents the making of any report, and supersedes the busi- 
ness of the committee, as an adjournment of the house supersedes 
a question pending.^ This course of proceeding, though not regu- 
lar, is not unfrequently resorted to, under the peculiar circumstances 
of a case, as the most convenient mode of disposing of the matter. 
In this case, however, the order of reference stUl remains a subsist- 
ing order, and the house may at any time be again resolved into 
the committee. 

3009. It is a rule, in comm^ittee, that motions to report progress, 
and that the chairman do leave the chair, being of the nature of 
motions to adjourn the debate and to adjourn the house, if nega- 
tived, cannot be immediately renewed, but only after the interven- 
tion of some other proceeding.^ Hence, it is usual, when the house 
is in committee, to move alternately, " that the chairman do report 
progress," and " that the chairman do now leave the chair," for the 
same purpose that motions to adjourn the house, and to adjourn 
the debate, are alternately made in the house. 

2010. It has been stated, that when a committee has directed 
its chairman to report, either a progress, in the matter referred to it, 
or the resolution or other proceedings of the committee, a motion 
then foUows, that the chairman do now leave the chair. The inter- 
val between these two motions is the proper time for instructing 
the chairman, if necessary, to report to the house any disturbance, 
or extraordinary occurrence, which may have happened in the com- 
mittee, which has not already been reported, and which may be 
thought of importance enough to be reported to the house.^ 

1 May, 293; Cong. Globe, XL 341. ^ Hans. (2), X. 318, 319. 

2 Cong. Globe, VL 371. 



778 LEGISLATIVE ASSEMBLIES, [PaRT VIL 

CHAPTER SEVENTH. 

or THE EEPOETS OF CO:\DnTTEES OE THE "WHOIJE. 

2011. The reports of committees of the whole, made to the 
house, are usually in the form of resolutions, expressive of the 
opmion of the committee, as to the subject referred to it ; some- 
times, however, they are in the form of a direction from the com- 
mittee to its chairman, to inform the house of some fact, or to make 
a particular motion; and, sometunes, as, for example, when the 
committee reports resolutions, and, at the same time, directs the 
chairman to move for leave to sit again, both these forms are 
combined. 

2012. In respect to their substance, also, reports are of tw^o 
kinds, namely, those which relate to some occasional or incidental 
matter, occurring in the course of a committee's proceedings, and 
those which relate to the subject-matter referred to the committee. 

2013. Reports of committees of the whole differ from those of 
select committees, in one important particular, as to thefr sub- 
stance, namely, that, in all cases, where the subject of reference to 
a committee involves an investigation of facts, as well as the ex- 
pression of an opinion, it is the duty of a select committee to report 
the evidence or facts, which they find, as well as the resolutions of 
opinion, to which they have agreed upon the facts ; ^ but, when such 
an investigation is carried on by a committee of the whole, the 
committee simply reports resolutions ; inasmuch, as it would be 
the merest pedantiy of form to say, that the members of the house 
could not know in that capacity facts which had come to their 
knowledge sitting as a committee. 

Sectio^^ L Resolutions. 

2014. A committee of the v,'hole usually reports, in reference to 
the subject-matter referred to it, in the form of resolutions, which 
receive the consideration of the house, and are agreed to or disa- 
greed to, in the same manner as resolutions reported by a select 
committee, or moved by an individual member. 

1 Pari. Eeg. XI. 488. 



Chap. VIL] reports of committees of the whole. 779 



Section II. Direction to move the House or to state a Fact. 

2015. This form of report is adopted when the committee is of 
opinion, that the object can be most conveniently, and may with 
propriety, be accomplished in that manner. When the chairman is 
thus directed to make a motion, he reports accordingly and makes 
the motion, as directed by the committee. The motion is then 
treated in the same manner, as a motion emanating from an indi- 
vidual member It also requires notice to be given in the same 
manner.i 

2016. When the chairman is merely directed to make a state- 
ment to the house of some fact, without submitting any motion, 
the duty of the chairman is discharged by the simple statement as 
directed ; this being done, it is for the house, on motion of the 
members individually, to take such measures in reference to the 
matter of the statement as may be deemed necessary and proper. 



Section III. Special Reports. 

2017. Whenever any thing occurs, in the course of the proceed- 
ings of a committee, which makes the immediate intervention of 
the house necessary or desirable, the proper course is for the com- 
mittee to rise and report that matter to the house. Such proceed- 
ings take place thereupon as may be deemed necessary, and then 
the house resolves again into the committee. If the matter is one 
which does not require or admit of the immediate interference of 
the house, the committee makes a report upon it at the same time, 
with the report on the matter referred. 

2018. Occasions of this kind occur when a witness refuses to 
attend, or to testify, or prevaricates, or when a witness is tampered 
with, while in attendance upon the committee ; or where any ques- 
tion arises in the committee, as to the form of proceeding, which 
ought to be adopted ; or where it becomes desirable to enlarge the 
powers of the committee by further instructions. In these cases, 
the report may be in such form as may be deemed most conven- 
ient ; though, in the last-mentioned case, it is usual merely for the 
committee to report progress, — then, on motion, to receive the 
necessary instruction, — and then for the house to resolve itself 

1 See ante, 1947. 



780 LEGISLATIVE ASSEMBLIES. [PaRT VIL 

again into the committee. Reports of this kind are usually received 
at the time and taken into consideration immediately. 

2019. It seems, that if a breach of privilege occurs, while the 
house is in a committee, it cannot be decided upon by the commit- 
tee, but the house must be resumed, and all other matter suspended, 
until the question of privilege is settled.^ 



Section IV. Report on the Subject- Matter referred to the 

Committee. 

2020. Wlien the committee has gone through with the consid- 
eration of the subject referred to it, and has agreed upon the result, 
its report is usually presented to the house, in the form of resolu- 
tions, expressive of the opinion of the committee, as to the sub- 
ject-matter referred to it, or as to the proper course to be taken in 
the house with reference to such subject. Sometimes, however, 
the report is in the form of a direction to the chauman to move 
the house, that leave be granted for a bill to be brought in, or that 
a select committee be appointed for a particular purpose. 



CHAPTER EIGHTH. 

OF MAKING THE REPOET, AlfD PROCEEDmGS THEEEON. 

2021. The form of reporting from a committee of the whole, in 
the house of commons, is as follows. The committee having first 
agreed upon a report, the chairman is directed to leave the chair. 
On this, the chairman leaves the chair, the speaker takes the 
chair of the house, and the chairman, addressmg himself to the 
speaker, from his place in the house (for the purpose of making the 
report, the chairman usually takes a position near the steps of the 
speaker's chair) informs the house, that the committee of the whole, 
to whom such a subject was referred, having considered the same, 
has directed him to make .a report thereon, at such time as the 
house shall see fit to receive it. The house then, on motion, or- 

1 Pari. Reo;. XI. 188. 



Chap. IX.] particijlar committees of the whole. 781 

ders that the report be immediately received, in which case, he 
makes the report in his place, or near the chair, or that it be re- 
ceived on some future day named. 

2022. At the time appointed for receiving the report, (the order 
of the day for receiving it being first read, if a future day has been 
appointed,) the chairman appears with it at the bar of the house, 
and, upon being called to by the speaker, states that he has such a 
report. A motion is then made, or supposed to be made, and a 
question put, that the report be now brought up. This motion 
may be decided in the negative, in which case, it is competent to 
the house, to fix upon another time, either within or beyond the 
session, for receiving the report, or to let the matter drop without 
any further proceeding, or to recommit the report to the commit- 
tee. The motion may be amended, by leaving out "now " and in- 
serting some other day, either within or beyond the session, and 
agreed to in that form ; or it may be simply agreed to, in which 
case, the report is brought up to the table. "When the report is 
brought up, a motion is made or supposed to be made, and a ques- 
tion put, for the reading of the report. If the report consists of 
resolutions, they are then to be proceeded with, — that is, read 
and considered, — in the usual manner ; if it is in any other form, 
such proceedings then take place, as the nature of the subject re- 
quires.^ 



CHAPTER NINTH. 

OE SOME PARTICULAR COMMITTEES. 

2023. Committees of the whole owe their origin to the grand 
committees, as they were called, which played so important a part 
in parliamentary proceedings, during the reigns of James I. and 
Charles L, and which were, in fact, standing committees of the 
whole house. These committees generally sat, like the select com- 
mittees of more modern times, in the afternoons, after the adjourn- 

1 It is scarcely necessary to add, that in place in the house. The form of a report 

our practice, the ceremony of making the upon a bill, as well as the proceedings upon 

report from tlie bar is in all cases dispensed such report, will be stated in the next part 
with, and that the chairman reports from his 

66 



782 LEGISLATIVE ASSEMBLIES. [PaRT VII, 

ment of the house, and at other times when the house was not in 
session. Sometimes, however, the house, while sitting, was turned 
into a grand committee, for a particular purpose ; and this pro- 
ceeding seems to have given rise to committees of the whole as 
they are now constituted. 

2024. These grand committees, from the character of the sub- 
jects, which they were appointed to investigate, came at length to 
be denominated the grand committees for rehgion, trade, courts of 
justice, and grievances. They -were appointed at the commence- 
ment of each session, and were directed by the house to sit on cer- 
tain days, in each ^'"eek, during the session. But, in fact, these 
committees, though regularly appointed, existed only in name fr'om 
the time of the Restoration, — never having been called upon to sit 
for the consideration of any matter referred to them, from that 
time, — and they were whoUy laid aside in 1832, at the beginning 
of the first session of the reformed parliament. 

2025. The ancient committee of privileges is also analogous to 
a grand committee, consisting of certain members, specially nom- 
inated, of aU knights of shires, gentlemen of the long robe, and mer- 
chants in the house ; and, " aU, who come are to have voices." 
This committee is not appointed to sit, unless there is some special 
matter to be referred to it, as was the case in 1847.^ 

2026. The only committees of the vvhole house, which, in 
modern times, possess the character of permanent or standing 
committees, are the committees of supply and of ways and means. 
These committees are the parhamentary machinery, by means of 
which the house of commons chiefly exercises its poHtical or con- 
stitutional functions. In order to make thefr proceedings intelligi- 
ble, it ^viU be necessary to state very briefly, the constitutional 
functions of the several branches of the legislature. 

2027. The crown, acting with the advice of its responsible min- 
isters, being the executive power, is charged with the management 
of aU the revenues of the State, and with aU payments for the 
pubhc service. The crown, therefore, in the first instance, makes 
known to the commons the pecuniary necessities of the govern- 
ment, and the commons grant such aids or suppHes as are required 
to satisfy those demands ; and provide by taxes, and by the ap- 
propriation of other sources ©f the pubKc income, the ways and 
means to meet the supphes granted by them. Thus, the crowm 
demands money, the commons grant it, and the lords assent to the 

1 Comm. Jour. CIII. 139, West Gloucester Election. 



Crap. IX.] pahticular committees of the whole. 783 

grant. But the commons do not vote money, unless it is required 
by the crown ; nor impose or augment taxes, unless they are neces- 
sary for meeting the supplies which they have voted, or are about 
to vote, or for supplying general deficiencies in the revenue. The 
crown has no concern in the nature or distribution of the taxes ; 
but the foundation of all parliamentary taxation is its necessity for 
the public service, as declared by the crown and its constitutional 
advisers. 

2028. In addition to the necessity of a recommendation from 
the crown, prior to a vote of money, the house of commons has 
interposed another obstacle to hasty and inconsiderate votes, which 
involve any public expenditure, by a resolution of the 18th Febru- 
ary, 1667, and now made a standing order, " That if any motion 
be made in the house for any public aid or charge upon the people, 
the consideration and debate thereof ought not presently to be en- 
tered upon, but adjourned till such further day as the house shall 
think fit to appoint ; and then it ought to be referred to the com- 
mittee of the whole house, and their opinions to be reported there- 
upon, before any resolution or vote of the house do pass therein." ^ 
A similar rule was made a standing order, on the 29th March, 
1707, namely : " That this house will not proceed upon any peti- 
tion, motion, or bill, for granting any money, or for releasing or 
compounding any sum of money owing to the cro^m, but in a 
committee of the whole house." ^ 

2029. In compliance with these rules, — for receiving recom- 
mendations from the crown for the grant of money; — for defer- 
ring the consideration of motions for supply until another day; — 
and for referring them to a committee of the whole house ; — the 
proceedings of parliament, in the annual grants of money for the 
public service, are conducted in the manner described in the follow- 
ing paragraphs. 

2030. On the opening of parliament, the king, in his speech 
from the throne, addresses the commons ; demands the annual pro- 
vision for the public services ; and acquaints the house that he has 
directed the estimates to be laid before them. The first business of 
the commons, on returning to their house, is to consider of and 
agree to an address, in answer to the king's speech ; and this being 
done, they order the speech to be taken into consideration on 
another day. When that day arrives, the house proceeds to take 
the speech into consideration, and it is again read by the speaker 

1 Comm. Jour. IX. 52. 2 Comm. Jour. XV. 367. 



784 LEGISLATIVE ASSEMBLIES. [PaRT VII. 

A motion being then made that a supply be granted to his majesty 
the house, in conformity with the rule above mentioned, resolves^ 
that, on some future day, it wiU go into committee to consider of 
that motion. On the day appointed, the committee sits, the royal 
speech is referred to it, and the committee agrees to a resolution, 
"that a supply be granted to his majesty;" which, being after- 
wards reported, is agreed to by the house. 

2031. The general question in favor of a supply being thus de- 
termined, the house appoints another day, on which it will resolve 
itself into a committee " to consider of the supply granted to his 
majesty," or, as it is commonly called, " the committee of supply." 
The function of this committee being to consider of the sums of 
money needed for carrying on the government, and being thus 
obliged to consider the estimate of the expenses of the different 
departments of the government for the current year, the next busi- 
ness of Ihe house is to order those estimates to be laid before it, 
and to address the crown to give directions to the proper officers 
for that purpose. The day for the sitting of the committee is, of 
course, fixed ^^dth reference to the receiving of the estimates, or 
some of them, in the mean time. 

2032. The estimates for the navy, army, and ordnance depart- 
ments, are required by a resolution of the house of commons, when- 
ever parliament assembles before Christmas, to be presented before 
the 15th January, then following, if parliament is then sitting, or 
within ten days after the opening of the committee of supply, 
when parKament does not assemble till after Christmas. The esti- 
mates for civil services are usually presented somewhat later in the 
session. 

2033. When the estimates have been presented, printed, and cir- 
culated among the members, the sitting of the committee of supply 
begins. The committee does not go through with the entire busi- 
ness referred to it, namely, " to consider of the supply granted," 
before reporting; but from time to time reports such resolutions aa 
it has agreed to, and at the same time directs the chairman to 
move for leave for the committee to sit again ; this being granted, 
and the time fixed for the next sitting, the committee is thus kept 
" open," until it has gone through with its whole business. 

2034. On the day appointed for the first sitting of the commit- 
tee, the order of the day being read for the house to be resolved 
into the committee, the estimates and accounts then received are 
referred to the committee, and the house resolves itself into the 
committee, in the manner already described. In the committee, the 



CjHAP. IX.] PARTICULAR COMMITTEES OP THE WHOLE. 735 

member of the administration representing the department for 
which the supplies are required, after explaining to the committee 
such matters as may satisfy them of the correctness and propriety 
of the estimates, then proceeds to propose each grant in succession, 
of a sum of money named, for the object specified in the estimate. 
The order in which the several estimates are to be granted, the 
members by whom the grants are to be proposed, the days of sit- 
ting of the committee, and the days assigned for receiving its 
reports, are all matters the regulation of which is conceded, as 
a matter of course, to those members who represent the govern- 
ment. 

2035. When the first report of the committee of supply has been 
received by the house, and the resolutions reported agreed to, 
namely, that certain sums be granted to his majesty for the objects 
specified in the estimates that have been considered by the com- 
mittee, a day is then appointed for the house to resolve itself into a 
committee " to consider of ways and means for raising the supply 
granted ; " or, as it is briefly denominated, " the committee of ways 
and means." This committee reports from time to time, like the 
former, and is kept open in the same manner, and is ordered to sit, 
by the house, according to the state of the business before it, and 
the convenience of the house. 

2036. " As the committees of supply and ways and means con- 
tinue to sit during the session, are presided over by the same chair- 
man, are both concerned in providing money for the public service, 
and are governed by the same rules and usage, it will be necessary 
to distinguish their peculiar functions, before a more detailed ac- 
count is given of the forms of procedure which apply equally to 
both. The general resemblance between these committees has 
sometimes caused a confusion in regard to the proper functions of 
each ; but the terms of their appointment define at once their dis- 
tinctive duties. The committee of supply considers what specific 
grants of money shall be voted as supplies demanded by the crown 
for the service of the current year, as explained by the estimates 
and accounts prepared by the executive government, and referred 
by the house to the committee. The committee of ways and 
means determines in what manner the necessary funds shall be 
raised to meet the grants which are voted by the committee of sup- 
ply, and which are required for the public service. The former 
committee controls the public expenditure ; the latter provides the 
public income : the one authorizes the payment of money, the 

66* 



786 LEGISLATIVE ASSEMBLIES. [PaET VIL 

other sanctions the imposition of taxes, and the application of pub- 
lic revenues not otherudse applicable to the service of the year." ^ 

2037. " One of the most important occasions for which the com- 
mittee of ways and means is required to sit, is for receiving the 
financial statement for the year, from the chancellor of the ex- 
chequer.^ When that minister has had sufficient time to calculate 
the probable income and expenditure for the financial year, com- 
mencing on the 5th April, he is prepared to determine what taxes 
should be repealed, reduced, continued, or augmented, or what new 
taxes must be imposed. As it is the province of the committee of 
ways and means to originate all taxes for the service of the year, it 
is in that committee that the chancellor of the exchequer develops 
his views of the resources of the country, communicates his calcu- 
lations of the* probable income and expenditure, and declares 
whether the burdens upon the people are to be increased or dimin- 
ished. This statement is familiarly known as " the budget," and is 
regarded with gi-eater interest, perhaps, than any other speech 
throughout the session. The chancellor of the exchequer concludes 
by proposing resolutions for the adoption of the committee ; which, 
when aftervv^ards reported to the house, form the groundwork of 
bills for accomplishing the financial objects proposed by the minis- 
ter." 3 

2038. The resolutions of the committees of supply and ways 
and means are reported on a day appointed by the house, but not 
on the same day as that on "^'hich they are agreed to hy the com- 
mittee. When the report is received, the resolutions are fr^dce read 
and agreed to by the house ; or may be disagreed to, amended, 
postponed, or recommitted. K agreed to, bills are ordered to carry 
them into effect^ whenever it is necessary. This is the course pur- 
sued upon resolutions from the committee of ways and means ; but 
the greater part of the resolutions of the committee of supply are 
reserved for the Appropriation Act, at the end of the session. K 
it is proposed to amend a resolution on the report, the amendment 
can only effect a diminution of the proposed burden, and not an 
increase. If the latter is desired, the proper course is to recommit 
the resolution ; as an addition to the public burdens can only be 
made in committee.* 

2039. It must always be borne in mind, that the house can en- 
tertain any motion for diminishing a tax or charge upon the people ; 

1 May, 417. ^ jjay, 419. 

2 Or sometimes the first lord of the treasury, * May, 422. 
if a member of the house of commons. 



Chap. IX.] particular committees of the whole. 787 

and bills are frequently brought in for that purpose, without the 
formality of a committee. Obstacles are opposed to the imposition 
of burdens, but not to their removal or alleviation ; and this dis- 
tinction has an influence upon many proceedings not immediately 
connected with supply. For instance, the blanks left in a bill for 
salaries, tolls, rates, penalties, etc., are filled up in committee ; but 
on the report, the house may reduce their amount. If, however, it 
be desired to increase them, the bills should be recommitted for that 
purpose. So, also, if a clause proposed to be added to a bill enacts 
a penalty, which the house, on the report of the clause, desire to 
increase, the clause ought to be recommitted.^ Any bounties, 
drawbacks, or allowances, involving payments out of the revenue, 
have usually been proposed in committee ; but if an allowance 
were merely in the form of a deduction from the amount of a pro- 
posed duty, it might be entertained by the house." ^ 

2040. When the suppUes for the service of the year have all 
been granted, the committee of supply discontinues its sittings, but 
the financial arrangements are still to be completed by votes in the 
committee of ways and means. That committee authorizes the 
application of money from the consolidated fund, the surplus of 
ways and means, and sums in the exchequer, to meet the several 
grants and services of the year ; and a bill is ordered to carry their 
resolutions into effect. This is known originally as the Consoli- 
dated Fund BiU, but after it has been committed, an instruction is 
given by the house to the committee, to receive a clause of appro- 
priation, and it is then called in the votes the " Consohdated Fund 
(Appropriation) Bill," but more generally the Appropriation Bill. 
It enumerates every grant that has been made during the whole 
session, and authorizes the several sums, as voted by the committee 
of supply, to be issued and applied to each separate service." ^ 

2041. There is only one other name, of a general character, by 
which a committee of the whole has been known in modern times, 
namely, a committee on the state of the nation ; into which both 
houses of parliament, on extraordinary occasions, as in the house of 
commons, during the war in 1778, and in both houses, during the 
illness of George III., have resolved themselves. The functions of 
this committee are thus somewhat sneeringly described by Lord 
Chancellor Loughborough, in his speech in the lords, on a motion 
that the house resolve into a committee to take into consideration 

1 See May, 361. 3 jjay, 425. 

2 May, 422. 



788 LEGISLATITE ASSEMBLIES. [PaET VII 

the state of the nation : " The only ejETect of entertaining such a 
motion was to fmiiish a theatre for the mti-odnction of eveiy par- 
ticular topic that could be urged, and to enable the mover to travel 
over ah the scenes of public afFahs, past, present, and to come ; to 
touch upon all possible subjects, and to abstain from, inquiry upon 
every one." ^ 

2042. Committees of the whole constitute a part of the ordinary 
parliamentary machinery, in all our legislative assemblies, in which 
they are in frequent use, though for the most part only occasionally, 
and not under any particular name. Li the second branch of con- 
gress they are provided for by rule, under the names of a committee 
of the whole, merely, and a committee of the whole on the state of 
the Union, and rules estabhshed for ffoins^ into them to the exclu- 
sion of other busmess. Li the latter, debate is, of course, uiu'estricted 
except to the state of the Union. The proceedings in the commit- 
tees above described, of supply, and of ways and means, have been 
the fruitful precursors, in this country, of constitutional and parlia- 
mentary provisions. The committee of ways and means m the 
house of representatives of the United States, is a select committee 
consisting of nine members. 

1 Pari. Reg. LIX. 512. 



LAW AND PKACTICE 



LEGISLATIVE ASSEMBLIES. 



PART SEYEXTH. 

OF COMMITTEES AND THEIE FUNCTIONS. 



THIRD DIVISION. 

JOINT COMMITTEES. 

2043. Besides select committees, and committees of the whole, 
of each house, there are joint committees, composed of members of 
both houses ; for the appointment of which concurrent resolutions of 
the two houses are necessary. Committees of this description exist 
in parUament but in name only ; for though there have been several 
instances of their appointment, in former years ; yet, for the last cen- 
tury and a half, no such committee has been appointed. " A rule 
similar to that adopted in regard to conferences, that the number on 
the part of the commons should be double that of the lords, obtained 
in the constitution of joint committees ; and was inconsistent with 
any practical union of the members of the two houses, in dehberation 
and voting. The principal advantages of a joint committee were 
that the witnesses were sworn at the bar of the house of lords,^ and 
that one inquiry, common to both houses, could be conducted pre- 
paratory to any decision of parliament. But the power possessed 

» Coram. Jour. II. 502; Same, V. 647, 655. 

'789) 



790 LEGISLATIVE ASSEMBLIES. [PaET Vil. 

by the commons of ou-h^oting the lords — their right to meet their 
lordships -^dthout the respectful ceremonies observed at confer 
ences, and their share in the pri^olege of taking the e^ddence of 
sworn "udtnesses, naturally rendered a joint committee distasteful 
to the house of lords, by whom no power or facilities were gained 
in return." ^ 

2044. A modification of the practice of appointing joint com- 
mittees may be effected by putting committees of both houses in 
communication A^dth each other. In 1794 the commons had com- 
municated to the lords certain papers which had been laid before 
them by the king, in relation to corresponding societies, together 
with a report of a committee of secrecy ; and on the 22d May, 
1794, the lords sent a message to acquaint the commons that they 
had referred the papers to a committee of secrecy, and had " given 
power to the said committee to receive any communication which 
may be made to them from time to time by the committee of 
secrecy, appointed by the house of commons ; " ^ to which the com- 
mons replied, that they had given power to their committee of 
secrecy to communicate, from time to time, -v\dth the committee of 
secrecy appointed by the lords.^ And similar proceedings were 
adopted, upon the inquii-y into the state of Ireland in 1801, which 
was conducted by secret committees of the lords and commons 
communicating T\4th each other."^ 

2045. Besides serving in the manner above mentioned as a 
medium of communication betv>-een the t^'o branches, of which a 
legislative body is composed, joint committees seem to be employed 
\\dth us in two diiFerent manners, neither of which has any thing 
corresponding or analogous to it in the present proceedings of par- 
liament. According to the first of these methods, a committee of 
each branch is appointed by a separate, though concurrent vote of 
each, to whom the same subject is referred, and who make the 
same report in both branches. These committees are confined for 
the most part to matters of form, state, and ceremony, and are not 
apphed to the ordinary business of legislation. In Massachusetts, 
and in some others of the Northern States, jomt committees, con- 
sisting of unequal numbers of the t\\^o branches, are appointed by 
a concurrent act ; are employed about the ordinary business of leg- 
islation ; constitute one homogeneous committee ; and make their 
report indifferently in either branch. These committees, as to their 

1 May, 328. * Coram. Jour. XLIX. 620. 

9 Comm. Jour. XLIX. 619. * Comm. Jour. LXVI. 287, 291; May, 329, 



JOINT COMMITTEES. 791 

form and authority, and modes of proceeding, do not differ from the 
common select committees of a single branch, except that every 
vote, in relation to them and their proceedings, must be concurrent. 
The former committees are very sparingly, the latter very abun- 
dantly, used. 



LAW AND PRACTICE 



ov 



LEGISLATIVE ASSEMBLIES. 



PART EIGHTH. 

OF THE PASSING OF BILLS. 

67 ^^»3> 



LAW AND PRACTICE 



or 



LEGISLATIVE ASSEMBLIES. 



PAET EIGHTH. 

OF THE PASSING OF BILLS. 



HISTOEY OE THE PRESENT FORM OE STATUTES, AND THE MODE 
OF PASSING THEM. 

2046. The principal and most important business of a legisla- 
tive assembly is embraced in the making of laws. To this end, 
almost all its other functions are subsidiary, and almost all its pro- 
ceedings directed. In order to the making of a law, the three 
branches must concur in the same proposition, or series of proposi- 
tions, embodied in a particular form ; which, before being agreed 
to, is denominated a bill, and, afterwards, becomes an act or stat- 
ute. The proceedings, which relate to the introduction of these 
propositions, and to the agreeing upon the terms in which they 
are expressed, are collectively denominated the passing of bills.^ 

2047. In order to the passing of a bill, the propositions of which 
it is composed, reduced to writing in the proper form, are first 
introduced and agreed to in one house ; the bill is then sent to the 
other house, where it is considered in the same manner as in the 

1 Where a legislative body consists but of a are known. The same appellation is given to 
single branch, its acts are usually denom- the acts of inferior legislative bodies, though 
inated " ordinances " by which name the consisting of more than one branch, as, for 
Bots of the old congress of the confederation example, to the acts of a city council. 

(795) 



796 LEGISLATIVE ASSEMBLIES. [PaET VIII. 

house in which it originated ; and there it may be either agreed to 
in the form in which it is sent, or with amendments and altera- 
tions, which are afterwards assented to by the house from which it 
emanates. Being agreed to in both branches, it is then presented 
to the king, who either assents to or rejects it altogether. With 
one or two unimportant exceptions, which will be noticed hereafter, 
bills may originate indifferently m either house ; but, with a single 
exception only, which ^\dll also be noticed in another place, the 
crown has no power whatever to originate biUs. 

2048. The present method of enacting laws in parliament, ac- 
cording to which the terms of an act are first agreed upon by the 
two branches, and are then assented to or rejected, but not modi- 
fied, by the crown, appears to have been finally established about 
the close of the reign of Hemy VI. Previous to this period, though 
the right of the house of commons to participate fully and equally 
with the king and lords in the functions of legislation had been 
recognized, the commons appear only in the capacity of petitioners, 
representing the people of England in the statement of their griev- 
ances, and praying for relief. To the petitions of the commons, 
in this behalf, answers were given by the crown, the lords and 
prelates assenting, granting them in full, or only partially, or ingraft- 
ing new matter upon them, or rejecting them altogether, according 
to the pleasure of the sovereign. The petitions and ans'wers were 
then entered on the rolls of parliament, not in any technical form of 
language, but according to the circumstances of each case. At the 
end of each parliament, those of the petitions which had been as- 
sented to in any form, together with the answers, were digested and 
dra\\Ti out by the judges into the form of statutes, which were en- 
tered on the statute roE, and became acts of parliament.^ 

2049. This form of proceeding, which, considering the illiterate 
character of the age when it commenced, "v\^as probably the best, if 
not the only mode, in which the commons could participate in the 
making of laws, was nevertheless subject to inconvenience, and 
liable to abuse. The crown had the power, by giving a qualified 

1 Dwanis, Part I. 22-28. It is donbtless of parliament concerning that matter, as also 

true that this practice was attended with the how far forth former statutes had provided a 

advantage, that the statutes were skilfully remedy for former mischiefs and defects dis- 

prepared by competent persons ; a fact to covered by experience, then should very few 

which Sir Edward Coke in the preface to the questions in law arise, and the learned should 

first part of his reports, alludes, almost in not so often and so much perplex their heads 

terms of regret, at the discontinuance of the to make atonement and peace by construction 

practice. " If," says he, " acts of parliament of law between insensible and disagi-eeing 

were after the old fashion penned, and by words, sentences, and provisos, as they now 

such only as perfectly knew what the com- do." 
mon law was, before the making of any act 



PASSING OF BILLS. 797 

assent, to defeat the wishes of the commons, whilst seeming to 
grant their petitions. It was also difficult for the judges, even with 
the best intentions, to digest the petitions and answers, — espe- 
cially after the lapse of some time, — into acts really expressive 
of the legislative will. But, above aU this method afforded an 
opportunity to corrupt and unprincipled judges, in subservience to 
the crown, to falsify the record which they were intrusted to frame, 
by additions and alterations, which rendered the act materially 
different from the petition of the commons.^ 

2050. In order to guard against these inconveniences, it was pro- 
vided in the 8th of Henry IV. at the request of the commons, that 
certain of the commons' house should be present at the engrossing 
of the parliament rolls. But, it does not appear, that the evil was 
remedied by this precaution. In the second year of Henry V. the 
commons again represented, that, as they were assentors as well as 
petitioners, statutes should be made according to the tenor of the 
writing of their petitions and not altered, to which the king as- 
sented. Subsequently, during this reign, and doubtless with a 
view to prevent a continuance or repetition of the mistakes and 
abuses alluded to, the statutes appear to have been drawn up by 
the judges before the end of the parUament. In the following 
reign, an effectual remedy was hit upon by the commons, and ap- 
plied, namely, the introduction of bills in the full and complete 
form of acts of parliament, according to the modern custom, which 
were passed in a manner approaching that of the present day.^ 

2051. This substitution of statutes, complete in point of form, 
m the place of the old petitions, which became fully established 
about the end of the reign of Henry VI. was not only effectual to 
remedy the evil in question, but also had the effect to introduce a 
new and most important principle into the constitution, namely, 
that the crown had power only to approve or reject altogether the 
identical propositions agreed to by the lords and commons, but had 
no power to alter, amend, or qualify them, in any manner whatso- 
ever.3 It is worthy of remark, that, notwithstanding this change, 
the form of a petition is still retained in acts of parliament. 

1 Dwarris, Part I. 29. utes, that laws brought into either house of 

" Dwarris, Part I. 30, 32, 33. parliament in a perfect shape, and receiving 

3 " Perhaps the triple division of our legis- first the assent of lords and commons, and 

lature may be dated from this innovation, finally that of the king, who has no power to 

For, as it is impossible to deny, that while the modify them, must be deemed to proceed, and 

king promulgated a statute founded upon a derive their efficiency, fi-om the joint concur- 

mere petition, he was himself the real legisla- rence of all the three." Hallam, Middle Ages 

tor, so I think it is equally fair to assert, not- IL 123, note 3. 
Withstanding the formal preamble of our stat- 

67* 



798 LEGISLATIVE ASSEMBLIES, [PaRT Vlli 

2052. In this part, which is devoted to the manner of passing 
bills, it will only be necessary to consider them either as public or 
private ; aU biUs of every description belonging to one or the other 
of these two classes, so far as relates to the proceedings by which 
they become acts or laws. In addition to the forms and proceed- 
ings, which are applicable to bills generally, there are some which 
are peculiar to private bills, and which make it necessary to con- 
sider them separately. The subject of passing bills wiU therefore 
be treated of under two divisions : — in the first of which, every 
thing relating to the passing of biUs, except what is peculiar to 
private bills, will be considered ; and, in the second, those forms and 
proceedings which are peculiar to the latter. In those of our legis- 
lative assemblies, in which there are any differences in the method 
of proceeding between public and private bills, it is always a ques- 
tion of order merely, for the presiding officer to determine whether 
a given bill shall proceed as a public or private one.^ These dif- 
ferences, which in some assembKes do not exist at aU, vary much 
in those in which they prevail, and are all probably embodied in 
the highly artificial system which is established in parliament, and 
which constitutes the second division of this part. That division 
has, of course, no other authority here than what belongs to the 
principles it contains, 

1 Cong. Globe, Xn. 183; Same, Xm, 636. 



LAW AND PEACTICE 



OF 



LEGISLATIVE ASSEMBLIES. 



PART EIGHTH. 

OF THE PASSING OF BILLS. 



FIRST DIVISION. 

PUBLIC BILLS. 

2053. In treating of the passing of bills, it will be most conven- 
ient to pursue the order of the proceedings which regularly take 
place, from their inti-oduction into one house, until they receive the 
royal assent, after having passed through the other; at the same 
time taking notice of those proceedings which may occur out of 
the regular course, and by means of which the passing of a bill 
may be defeated. Those proceedings which may take place here, 
on the approval of the executive, and by means of which a bill 
may be passed, notwithstanding the objections of the latter, will be 
noticed under the head of Royal Assent. 

2054. Pursuing this order in the arrangement and treatment of 
the several subjects embraced in the passing of pubKc bills, this 
division will be considered in the foUowdng chapters : — I. Prelim- 
inary; II. Introduction of the subject of a bill into the house; 
III. Intermediate proceedings ; IV. Authority for the introduction 
of a bill ; V. Drawing of a bill ; VI. Presentation and reception 

(799) 



800 LEGISLATIVE ASSEMBLIES. [PaET VIII. 

of a bill ; VII. Different stages of a bill ; VIII. First reading and 
order for second ; IX. Second reading and order for commitment ; 
X. Instructions to committees ; XI. Commitment ; proceedings 
in committee ; amendments ; XII. Report of committee and pro- 
ceedings thereon ; XIII. Engrossment and third reading ; XIV. 
Passing ; XV. Amendments between the two houses ; XVI. Au- 
thentication of bills between the two houses ; XVII. Communi- 
cations between the two houses relative to the passing of bills; 
XVIII. Of bills which are required to be commenced in one house 
in preference to the other ; XIX. Of the rule which precludes the 
same question from being twice presented during the same session, 
in its application to bills ; XX. Proceedings Vvdth reference to bills 
out of the ordinary course of passing ; XXI. Communications be- 
tween the tT\^o houses relative to the reasons or grounds for the 
passing of bills; XXII. Of the royal assent or approval by the 
executive ; XXIII. Of several miscellaneous matters connected 
with the passing of bills. 



CHAPTER FIRST. 

INTEODUCTOEY. 

2055. A biU, as has already been stated, is a proposition, or 
series of propositions, expressed in a particular form of words, pur- 
porting to be an authoritative declaration of the will of the legis- 
lative power ; and which, when agreed to by the different branches 
of that power, becomes a law. The effecting of this agreement is 
what is meant by the passing of a bill ; and the form in which the 
proceedings are conducted, with a view to this end, constitute the 
system or method of passing biUs in a legislative assembly. The 
great purpose of all these forms is to enable the assembly to ascer- 
tain what its will is, in reference to a given topic of legislation, 
with freedom, intelligence, and deliberation ; and, when ascertained, 
to express it promptly and readily, and in the form of words best 
adapted to the purpose. 

2056. In considering what should be the course in passing a bill, 
two modes of proceeding occur to the mind, either of which, at the 
first view, seems calculated to effect the object. Each individual 
member might be allowed to introduce any biU, whether of a public 



Chap. I.] public bills. ' 801 

or private nature, which he desired to have considered, in the form 
which he thought the best, and the most likely to meet the appro- 
bation of the house. This mode, however adequ?ite it might be 
with reference to a bill containing but a single proposition, or to 
one of extreme simplicity in its provisions, would clearly be attended 
with inconvenience in the case of a bill consisting of many propo- 
sitions, complicated in its sti'ucture, and comprising a number of 
details ; inasmuch as it is obvious that a single member, or a few, 
acting without any previous communication with the house, would 
find it difficult, if not impossible^ in very many cases, to frame a 
bill of that description, so as to be acceptable, both as to matter 
and as to form, to a numerous assembly. The other mode of pro- 
ceeding alluded to, namely, that of the house itself framing the bill, 
would be attended with inconveniences of a different kind ; such, for 
example, as the difficulty of going into the consideration of minute 
details in a large body, but not less desirable to be avoided. Each 
of these modes of proceeding, however, is attended with some ad- 
vantages. A bill, of few provisions, and simple in its structure, 
may safely be intrusted to be framed by a single member, and the 
time of the house thereby saved ; whilst on the other hand, the 
principles upon which a bill of complicated and various structure 
is to be framed, as they can only, so they can most readily, be de- 
termined by the house itself. In the system which the experience 
of three centuries has established in the legislative assembhes of 
England and of the United States, the inconveniences have been 
avoided, and the advantages saved, of these opposite modes of pro- 
ceeding. 

2057. The principal thing to be observed, with regard to the 
proper form for a bill to have, is, that it should be as nearly as pos- 
sible in that form in which, if agreed to at all, it may ultimately 
receive the sanction of the house ; or in which, if not immediately 
acceptable, it may most readily be amended, so as at last to be 
brought into the requisite form ; and, to this end, the various pre- 
liminary proceedings which take place are directed. These pro- 
ceedings are usually more or less elaborate and extended, in each 
particular case, according to the nature of the subject-matter, the 
information possessed by the house voth reference to it, the form 
necessary to be given to the bill, and to other circumstances of a 
like character. Where the rfature of a contemplated biU is such 
that no preliminary steps, or very few, are necessary to be taken, 
with a view to its introduction, the forms of proceeding admit of 
its being brought forward at once ; where, on the contrary, either 



802 LEGISLATIVE ASSEIvIBLIES. [PaRT VITL 

the subject or the form of a bill requires that it should be more 
thoroughly considered, or more carefully prepared, or that it should 
receive the attelition of the house previous to its introduction, there 
are forms and methods of proceeding adapted to that end. 

2058. In order to the introduction of a biU, however, in any 
form, the authority of the house is necessary. The different modes 
in vrhich this authority is conferred, are so connected vith the pre- 
liminary proceedings above aRuded to, that, before undertaking to 
present the latter, it will be necessary to go into some explanation 
of the former. The authority of the house, for this pm-pose, is con- 
fen'ed in t^'o raodes, Jirst, by an order gi^^ng leave to bring in a bill 
for a specific purpose, and appointing a member or members to 
prepare and bring it in ; and second, by appomting a committee to 
consider a given subject, ^dth authority, if they think proper, to pre- 
pare and bring in a bill relative thereto. 

2059. I. In the earher periods of parliamentary history, it ap- 
pears to have been the practice in both houses, for the members 
individually to offer such bills for the public good, as they thought 
proper. " Any member of the house," says Scobel, " may offer a 
bill for pubhc good, except it be for imposing a tax ; "which is not 
to be done but by order of the house first had. K any public bill 
be tendered, the person who tenders the bill must first open the ' 
matter of it to the house, and offer the reasons for the admitting 
thereof ; and, thereupon, the house ^^nR either admit or deny it." ^ 
According to the same author, " A private biU, that concerns a par- 
ticular person, is not to be offered to the house till the leave of the 
house be desu-ed and the substance of such bill made knowTi, either 
by motion or petition ; nevertheless the speaker hath had liberty to 
call for a private bill to be read every morning." ^ The practice of 
introducing bills by individual members, still prevails in reference 
to public bills in the house of lords ; in which any peer is at hberty 
to present a bill, unless it be a private one,-^ and have it laid on the 
table.4 

2060. In the house of commons, the offering of bills by individual 

1 Scobel, 40, 41. peer, in order to put to the test the right of 
- Scobel, 41. any noble lord to bring into the house any bill 

2 Lords' Jour. LXm. 281. that he pleased, brought in a bill containing a 
* May, 345; Lords' Deb. HE. 28, 99; Hans, caricature print of Mr. Fox and Lord North; 

(1), ni. 24; Same, (3), XIII. 1188. In a de- and ^question arose, -svhether he had a right 

bate in the house of lords, July 2, 1832, Lord to introduce and lay on the table a bill of that 

Holland said, that every peer had a right to kind, and it was decided that he could." 

bring in a bill -(dthout leave of the house; and Hans. (3), XIIL 1188. See also Pari. Reg. (2), 

related the following anecdote in confirmation XIV. 16. 
»f his statement: "In the year 1784, a noble 



Chap. L] public bills. 803 

members, without previous leave, has been long discontinued ; ^ and, 
according to the modern practice, no member is at liberty to offer a 
bill until leave has been first granted by the house ; ^ nor, when 
leave has been granted, can a bill be presented but by the mem- 
bers or one of the members, named in the order.^ This change was 
not established by any express general order or rule, but by a grad- 
ual usage, introduced probably in consequence of the inconven- 
ience, resulting from the old method.* At first, it was usual merely 
to order that leave be given to bring in a bill, without naming 
any member or members by whom it was to be brought in ; after- 
wards, a recommendation was added to the order, to a particular 
member to take charge of the business ; at length, it became the 
constant usage, and is now indispensable,^ to name one or more 
members to prepare and bring in the bill. According to the present 
practice of the house of commons, therefore, instead of presenting 
or offering to present a bill, the only motion which can properly be 
made is, that leave be granted to bring in a bill for such or such a 
purpose, or with the particular title mentioned. Sometimes the 
motion is framed in such a manner, that instead of giving leave to 
bring in a bill, the house orders one to be brought in ; the effect of 
which is the same.^ 

2061. 11. Another form, in which the introduction of a bill is 
authorized, is where a committee is appointed to consider a given 
subject, with authority, if it thinks proper, to prepare and bring in 
a bill relative thereto.'' This form of proceeding does not appear 
to have been much, if at all, used of late years ; for the reason prob- 
ably, that, in regard to public bills, the preliminary proceedings of 
the house render it unnecessary to confer upon a committee a 

1 Comm. Deb. VII. 262, usual method of proceeding in the house of 

2 May, 271. commons, as to the bnnging in of bills, was 
* Comm. Jour. XXXIIL 255. first to move for leave to bring in a bill for 
■* Li February, 1667, there is the following such or such purposes, and that being agreed 

entry in the Journal of the Commons, (vol. to, the house then ordered some of their own 

IX. 52): " A bill for frequent holding of parlia- number to prepare and bring in the bill; that 

ments v,'as read. Ordered, that the person who though this was the usual method, there was 

brought in the bill do withdraw it. Ordered, a precedent, from which it appeared, that thn 

that no bill of this nature be tendered to the solicitor-general (afterwards Lord Hardwicke) 

house, but by leave of the house, and order moved for leave to bring up such a bill, which 

obtained, after ten of the clock in the morn- was granted, and he immediately brono-b.t up 

ing." the bill. Upon this statement being made, tua 

5 Comm. Jour. XXXIII. 255. motion to bring up was waived, and the ques- 

8 In the 6th George II., a member having tion put in the usual form. Comm. Deb. VII. 

moved for leave to bring up a bill which he 261, 267. 

held in his hand, a debate ensued as to the ' Comm. Jour. TX IS 296. 298; Same, ^11 

order of prooeeding, at the close of which Mr. 74; Same, XIII. 655. 
Speaker Onslow informed the house, that the 



804 ■ LEGISLATIVE ASSEMBLIES. [PaRT VIII. 

power, which the house is generally unwilling to delegate ; and, in 
regard to private bills, which are always drawn by the parties or 
their agents, the other mode is the most appropriate. 



CHAPTER SECOND. 

OP THE INTEODUCTION OF THE SUBJECT OF A BILL INTO THE 

HOUSE. 

2062. The introduction of a bill, as has been seen, must be 
always preceded by the introduction of the subject in some form or 
other. This may take place in any of the forms in which business 
is ordinarily introduced ; some of the principal of which will now 
be mentioned. 

Section L PETiTioisr. 

2063. A petition is one of the most common and usual modes 
of introducing the subject of a bill, especially a private bill, to which 
it is now requisite by the orders of both houses of parliament,^ 
though formerly private bills appear to have been sometimes intro- 
duced on motion.^ When a petition has been brought up and 
read, and laid on the table, a motion may then be made for leave 
to bring in a bill conformably thereto,^ or the petition may be pro- 
ceeded upon in such other manner as may be necessary, with a 
view to the introduction of a bill. 



Section II. Address or Message. 

2064. Communications from the crown, as a message, either 
verbal * or written, to one or both the houses, or an address from 
the throne, to the two houses together, form a second mode, in 
which the subject of a bill is often introduced. 

i May, 514. » Pari. Reg. TIL 148, 170; Comm. Jour. 

2 Comm. Jour. X. 313, 323, 447, 795. XXXV. 447; Pari. Reg. XIV. 169, 171. 

* Comm. Jour. XVI. 512. 



Chap. IL] subject of a bill. 805 



Section III. Reading of some Document or Record. 

2065. A third mode, which is of very frequent occurrence, is the 
reading, on motion, of some document or record, which, by the 
practice of parliament, is considered as bringing the subject-matter 
before the house, and laying the foundation for a motion for leave 
to bring in a biU relating thereto. This mode of proceeding 
undoubtedly had its origin at a period anterior to the invention of 
printing, or, at all events, before it had become as now the general 
practice to print almost every paper or document of public interest. 
This mode of introducing a topic to the attention of the house, as 
the ground of a motion, is still practised ; but it is hardly necessary 
to observe, that the actual reading is in general dispensed with ; 
the paper or document being read short, that is, by a few of the first 
words, or, which is the same thing, entered in the journal as 
read. 

2066. This form of proceeding may be resorted to, with reference 
to every document or record, which is of a public nature, and of 
which parliament is bound to talte official notice ; as, for example, 
an act,^ or part of an act,^ of parliament, which is the constant prac- 
tice, when it is intended to move for the repeal, amendment, exten- 
sion, or revival of such act ; so of resolutions, either of the house 
itself 2 or of both houses."^ When a document is of a public nature, 
but not one of which the house is bound to or can take official 
notice, as, for example, a proclamation of a local character, the 
course is first to cause a copy of the document to be laid before the 
house from the proper authorities.^ 

2067. This form of proceeding is also proper, with regard to 
every document or paper, which is regularly in the possession of 
the house, whatever its character may be ; as, for example, any 
entry in the journal of an order, resolution, or other proceeding of 
the house, whether of the same or of a former session, royal 
speeches or messages, reports of committees, minutes of evidence, 
accounts and returns, petitions previously received. When the 
reading has taken place, it is then competent for the house to pro- 
ceed upon the subject in such manner as may be thought proper. 

1 Comm. Deb. XIII. 229. * Pari. Deb. V. 204. 

« Coram. Deb. X. 290, 292. 5 Hans. (1), VL 598, 599. 

» Comm. Deb. VIIL 268; Same, XIV. 199; 
Pari. Reg. I. 12; Same, LVI. 659. 

68 



806 LEGISLATIVE ASSEMBLIES. [PaET VIIL 



Section IV. Motion. 

2068. A fourth mode of introducing the subject-matter of a bill 
is by a direct motion,^ in the first instance, with reference to it ; as, 
for example, a motion that leave be granted to brmg in a biUj^ or 
heads of a hiW,^ for the particular purpose ; or that the subject be 
referred to a committee to consider and report, with or without 
authority to prepare and bring in a bill ; or that the house resolve 
itself into a committee for the consideration of a particular subject, 
or of heads for a bill ; "^ either then or at some future time ; or that 
the house then come to a resolution respecting the subject ° 



CHAPTER THIED. 

OF THE IXTERilEDIATE PEOCEEDIXGS BETWEEX^ THE IXTRODUC- 
TION OE THE SUBJECT AJN'D THE INTRODUCTION OE A BILL. 

2069. Upon the introduction of the subject-matter, in some one 
of the modes above mentioned, the house may proceed at once to 
make an order gi^"ing leave to bring in a bill, or directing one to be 
brought in, and appointing a member or members for that purpose. 
But it is very common, also, for intermediate proceedings to tsuke 
place, by which the house expresses its opinion to a greater or less 
extent, with reference to the subject-matter, before authorizing the 
mtroduction of a biU. 

Section I. Debates of the House. 



2070. Wliere, upon the introduction of the subject, in any form 
a debate takes place, a bill may be ordered, or leave may be given 



'i Which the mover may preface by a state- ^ Pari. Eeg. 142. 

ment of facts; Pari. Eeg. (2), XV. 249; Same, * Comm. Deb. XL 297. 

X"\T^U. 546; Same, XIX. 41; Same, XXIV. 8, 5 j^ motion for leave to bring in a bill may 

87 ; or make -withoiit any preface ; Pari. Eeg. be refen-ed to a committee of the whole. 

(2), Vn. 259. Comm. Jom:. XXXIIL 667, 713. 

3 Pari. Eeg. VIl. (2), 259. 



Chap. III.] SUBJECT of a bill. 807 

or a committee appointed,^ to bring in a bill, upon the debates of 
the house.2 Frequent instances of this proceeding are to be met 
with in the earlier journals of the house of commons. Thus, where 
a bill was tendered by a member, on behalf of the creditors of the 
grocers' company, on \\ hich a debate ensued, which was adjourned 
and resumed, it was ordered, that leave be given to bring in a bill, 
on the debates of the house, to enforce the company of grocers to 
pay their debts ; ^ where a petition was presented and read, and a 
motion made that leave be given for a bill, on which there was a 
debate, leave was granted, and it was also resolved by the house, 
that a bill be prepared and . brought in upon the debates of the 
house ; * where a bill previously introduced was read, and a debate 
arose, the house resolved that leave be given to bring in a bill 
relating to the same general subject, on the debates of the house ; ^ 
where, upon the report of an address, the address was negatived, 
the house immediately resolved that a biU for the same purpose be 
brought in upon the debates of the house ; ^ where a royal speech 
was taken into consideration and read, it was ordered, that a bill 
be brought in, upon the debates of the house, to make the militia 
more useful ; " where a motion was made for leave to bring in a 
bill, on which a debate ensued, leave was given to bring in a bill 
upon the debates of the house.^ 

2071. This practice evidently originated at the time, when it 
was the custom for the speaker to frame the question from the turn 
of the debate. It supposes, that the opinions of the house, with 
reference to the subject-matter, are sufficiently known, for the pur- 
pose of framing the bill, from the observations of the members, and 
the manner in which they are received by the house, without any 
formal expression thereof in the form of resolutions. It does not 
appear, that this mode of proceeding is at all in use in the British 
parliament at the present time ; though something equivalent to it 
takes place, when a bill or other matter is recommitted after a 
debate upon it, but without any specification of the purpose of the 
recommitment, which is supposed to be sufficiently known from the 
course of the debate. 

1 Grey's Deb. L 421; Same, IL 96; Same. « Comm. Jour. IX. 182. 
ni. 10, 18. » Comm, Jour. X. 449. 

3 Comm. Jour. XIX. 741. » Comm. Jour. XIL 484. 

« Comm. Jour. IX. 195. b Comm. Jour. XIII. 416. 

* Comm. Jour. IX. 738. 



808 LEGISLATIVE ASSEMBLIES. [PaET V IIL 



Section II. Heads; Articles; Eesolutions. 

2072. Another proceeding, by which the house expresses its 
opinion more distinctly than by the turn of the debates, takes place, 
when, upon consideration of the subject, it agrees upon heads for 
a bill,^ or upon articles, or votes, or comes to resolutions expressing 
its opinions, upon which it gives leave for or orders a bill.^ This 
mode of proceeding is in frequent use, though the opinions of the 
house are now expressed in the form of resolutions alone ; the terms 
heads, articles, votes, being, in fact, the same. 



Section III. Committee. 

2073. A third course, which is the most frequent in modern 
times, is to refer the subject to a committee to be considered and 
matured, before its consideration by the house. The committee 
may be either select, or of the whole house, according as either 
may be best adapted to the nature of the subject. A select com- 
mittee may be authorized, at the same tune, to prepare and bring 
in a bill ; but this is not according to the present practice. The 
authority usually conferred upon a select committee is to examine 
the matter referred to them, and to report the same as it shall 
appear to them, or with their opinion thereupon. The report of 
the committee, under this authority, is sometimes a mere statement 
of the facts, without any expression of opinion; sometimes their 
opinion merely ; and sometimes a statement of the facts, together 
with their opinion thereupon ; according as the nature of the sub- 
ject renders one or another of these courses most expedient and 
proper. 

2074. When the subject referred to a comm.ittee only requires a 
statement of the facts to be reported, — -as, where it is the constant 
usage of parliament to pass a biU of a particular description, upon 
certain facts being proved, of which various instances might be 
given, — the report of the committee merely states the facts, and it 
is for the house, upon such a report being made, to decide whether 
the facts proved are sufficient and satisfactory, and, thereupon, to 
make or refuse an order for the introduction of a bill. The facts 
may be presented either in the form of a statement or narrali ve, oi 

1 Comm. Jour. IX. 552; Grey, IV. 334, 339; s Scobel, 44, 45. 

Com. Deb. XII. 48, note. 



Chap. III.] ' subject of a bill. 809 

in that of resolutions, according to the nature of the case. When 
the latter form is adopted, the practice is to read the resolutions and 
agree to them in the usual manner. 

2075. When the subject referred to a committee is one which 
only requires it to express an opinion, — as, for example, where a 
committee is appointed " to inspect and inquire what laws are ex- 
pired, or are near expiring, and to report their opinion " which of 
them ought to be revived, continued, or discontinued, the opinion 
of the committee is reported in the forfn of a resolution or series 
of resolutions.! The usual course of proceeding with reference to 
resolutions thus reported, requires that they should be read twice 
and agreed to by the house, before any further proceeding is predi- 
cated upon them. When agi-eed to, the housfe may then give leave 
for or order a biU to be brought in accordingly.^ In some cases, 
committees have reported " heads for a bill," instead of resolutions.-^ 
This is a difference in form only, the propositions thus denominated 
being in substance resolutions, and proceeded with in the same 
manner.^ 

2076. The opinion of a committee, to whom a petition is re- 
ferred, is sometimes expressed in a simple form ; as, for example, 
that the petitioners are fit to be relieved by an act of parliament ; ^ 
that a bill, as the petitioner desires, is just and reasonable ; ^ that 
such a bill as is prayed for would be of good use and service to the 
public;'^ that the quakers (petitioners for relief) ought to be re- 
lieved according to the prayer of their petition.*^ A report in this 
form does not require to be read or agreed to like a resolution ; it is 
to be followed up, if the house are of the same opinion with the 
committee, by an order for leave to bring in a biU, agreeably to 
the prayer of the petition.'^ 

2077. The expression of the committee's opinion is sometimes 
accompanied by a direction to the chairman, or to some other mem- 
ber of the committee, to move the house that leave be granted to 
bring in a bUl ; in which case, the house is moved accordingly.^o 
The direction that the house be moved for leave to bring in a biU, 

1 Comm. Jom-. IX. 728, 729. •* Comm. Joiir. IX. 445; Same, XIL 532, 

2 In the earlier journals, there are instances, Same, XVII. 490, 496. 

in -which this covirse was not thought neces- ^ Comm. Jour. IX. 136, 149, 150. 

sary to be pursued; in one case, instead of o Comm. Jour. X. 592, 597, 614. 

the i-esolutions being read a second time, and ' Comm. Jour. X. 544, 546. 

agreed to, the report was recommitted to the » Comm. Jour. X. 764. 

same committee to prepare a bill or bills ac- « Comm. Jour. X. 734. 

eordingly. Comm. Jour. IX. 728, 729. w Comm. Jour. X. 544, 546, 592, 597 614; 

« Grey, IL 72; Same, IX. 72. Same, XL 376, 424. 

68* 



810 LEGISLATIVE ASSEMBLIES. * [PaRT Vlli. 

is sometimes expressed in the form of a resolution, and may be 
regarded and agreed to as such ; ^ but this does not appear to be 
necessary as a preliminary step.^ A very common form of report, 
from a committee of the whole, is to direct the chairman to move 
the house, that leave be granted to bring in a bill ; in which case, 
the report is made by informing the house of the direction of the 
committee, and making the motion accordingly.^ 

2078. There is a third class of cases, in which the nature of the 
matter referred requnes the committee to make a statement of the 
facts, and, at the same time, to express an opinion thereupon. In 
these cases, the statement of facts and of opinion is made in such 
of the modes respectively above described, as are most appropriate 
to the particular case ; as, for example, a detailed account of the 
facts and the opinion of the committee expressed thereon in the 
form of resolutions ; * or a statement of the facts, with a recom- 
mendation of a bUl, in some of the forms mentioned above ; ^ or 
with a direction to the chairman to move for leave to bring in a 
bill ; ^ or A^dth both such recommendation and direction.'' 

2079. There are four classes of bUls, in reference to which the 
standing orders of the house of commons require that preliminary 
proceedings should take place in a committee of the whole house, 
namely, 1, bills relating to religion, or the alteration of the laws 
concerning rehgion ; ^ 2, bills relating to trade, or the alteration of 
the laws concerning trade ; ^ 3, biUs for the expenditure of public 
money ; ^'^ and 4, bills for the laying of any pubhc aid or charge 
upon the people.^^ In all these cases, it is necessary that the sub- 
ject-matter should first be considered in a committee of the whole 
house ; upon whose resolutions bills may be ordered to be prepared 
and brought in.^^ 

2080. In the construction and application of the standing orders, 
the order concerning religion has usually been held to be applicable 
only to rehgion in its spiritual relations, doctrines, professions, and 
observances, but not to the temporalities or government of the 
church, or other legal incidents of rehgion ; that the order concern- 
ing trade appUes not only to trade generally, but also to any par- 

1 Comm. Jour. IX. 682. ^ Comm. Jour. X. 544, 546. 

2 Comm. Jour. XI. 28, 36; 29, 47; 48, 65; 8 Comm. Jour. XIV. 211; Same, XXXIII. 
51, 72. 678, 714. 

3 May, 346. » Coram. Jour. XIV. 211; Same, XXXHI, 

4 Comm. Jour. X. 127, 128, 169, 176; Same, 678, 714. 

X. 789, 818. " Comm. Jour. XV. 367; Same, XVI. 605 

5 Comm. Jour. IX. 136, 149, 160. " Comm. Jour. IX. 52. 

6 Comm. Jour. XL 365, 366, 420. ^ May, 346. 



Chap. IV.] subject of a bill. 811 

ticular trade, if directly affected by a bill ; and that the order con- 
cerning taxes or charges upon the people, though it applies strictly 
and without exception to aU bills that directly impose a charge 
upon the people, does not extend to bills authorizing the levy or 
application of rates for local purposes, by local officers or bodies 
representing the rate payers.^ 



CHAPTER FOURTH. 

OF THE AUTHORITY TOR THE INTRODUCTION OF A BILL. 

2081. When the house, either upon the introduction of the sub- 
ject, or after the intermediate proceedings above described, has 
determined upon authorizing the introduction of a bill, this is 
effected in one of the two modes already described, namely, by an 
order giving leave to bring in a bill, or directing a bill to be brought 
in, and naming one or more members to prepare and bring it in, or 
by the appointment of a committee for that purpose. 



Section I. Leave or Order to bring in a Bill. 

2082. The most usual form of authorizing the introduction of a 
bill is an order or resolution, that leave be given to bring in a bill 
for a purpose specified, and naming one or more members to pre- 
pare and bring it in. Sometimes, however, instead of leave being 
given, the form of the order is absolute, that a bill be brought in. 
This difference appears to be one of form only, at least so far as 
the preparation of the biU is concerned ; the most that can be said 
being, that, in the one case, the members named are authorized, 
and in the other required, to bring in the bill. 

2083. The members thus named do not appear to constitute a 
committee ; they are not so denominated in the order ; and they 
have none of the usual powers of a committee, as to their time of 
meeting, the number requisite to a quorum, etc., conferred upon 
them. The authority, under which they act, seems to be individ- 
ual ; it is not limited as to time, but by an express order, and it 

1 May, 347, 348, 349. 



812 LEGISLATIVE ASSEMBLIES. [PaET VIII, 

may be executed by any one of them, either mth or ^\dthout the 
concm-rence of the others.^ The duty reqmred of them being sim- 
ply ministerial, that is, to prepare a bill for a particular purpose, 
they have no discretion except as to the selection of the terms in 
which its provisions are to be expressed. When a bill is presented 
in pursuance of an authority of this kind, the entry in the journal 
is, that one of the members named presented the bill, pm-suant to 
order, and not as reported fi:om or by the direction of a com- 
mittee. 

2084. In order to the making of this motion, notice must be 
given in the usual manner.^ When made, it is subject to be de- 
bated and amended, and to be proceeded with generally like other 
motions. As a motion, it must conform to the orders of the house, 
consequently, a motion for leave to bring in a bill of the same title 
with one already introduced, is not admissible; inasmuch as it 
would conflict "v^dth the rule, which precludes the introduction of 
the same question a second time.^ Nor can leave be given to biing 
in a bill, providing for compensation out of public money, or relat- 
ing to trade or religion, etc. ; inasmuch as such bUls are required by 
the orders of the house to be first considered in a committee of the 
whole house.* 

2085. In framing this motion, the same accuracy is not necessary 
as in the case of a resolution or other proceeding of that nature ; 
it being sufficient if the motion indicate the general purpose of the 
bill proposed.^ On making the motion, it is usual for the mover to 
explain the objects of the bill, and to give reasons for its introduc- 
tion ; but, unless the motion is opposed, it is not customary to go 
into any lengthened debate upon its merits, especially if the subject 
Jias already been sufficiently debated.*^ When, however, an impor- 
tant measure is thus brought forward, it is not unusual to take the 
opportunity to discuss it at length ; and this course is necessary, 
where there is danger of a negative being put upon the motion ; in 
which case the question could not be again brought forward.''' 

2086. The most usual proceeding vnxh reference to a motion of 
this sort is, to amend it so as to enlarge,^ restrain,^ or modify,^*^ the 

1 There are Bumerous instances to be found = Pari. Eeg. (2), X. 205, 207. 

in the journals, where a member was added « Parl. Reg. XVIII. 280, 289, 294, 295, 296. 
to those formerly named to prepare and bring '' May, 345. 

in a bill, and immediately thereupon present- ^ Comm. Jour. XXXIX. 368; Same, XLI. 

ed the bill according to order. 889. ' 

2 May, 345. » Comm. Jour. XXXV. 451; Same, LXX 

3 Pari. Eeg. LVI. 130. . 62. 

* Pari. Eeg. LXffl. 97, 98. «> Comm. Jour. LXXI. 431. 



Chap. IV.] authority for bill. 813 

subject of, the proposed bill.^ The motion may also be amended, 
so as to substitute a select committee to mquire in the place of 
leave for a bill ; ^ or the motion itself may be referred to a commit- 
tee of the whole.^ 

2087. If the motion is agreed to, and the order made accord- 
ingly, the next step is the appointment, on motion, of certain mem- 
bers (usually the mover and seconder with others) to prepare and 
bring in the bill ; which appointment is generally made immedi- 
ately, though members may be added afterwards,* or the appoint- 
ment may be omitted altogether until some future day ; but, if not 
made at all, the order remains unexecuted and ineffectual.'^ 

2088. When the order has been made, it cannot afterwards be 
changed, or modified, by way of amendment. It is the usual and 
constant practice, however, to instruct the members appointed to 
bring in the bill to make provision therein for matters not contained 
within the terms of the order.'' Such instructions, as they do not 
change or discharge the order, may be made on the same day on 
which the order is made," as well as at any time afterwards. 

2089. The order may be discharged, either in whole, or in part, 
like any other order of the house, on any day after that on which 
the order is made, but not on the same day ; and it is only by 
means of discharging the order in part, or discharging it altogether 
and renewing it in some other form, that any change can be made 
in its terms. Thus, the order may be discharged in part, either as 
to the subject-matter,^ or as to one or more of the members ap- 
pointed to bring in the bill : ^ or, it may be discharged altogether, 
and other proceedings instituted with reference to the subject-mat- 
ter of it ; as, for example, where the order is founded on the report 
of a committee, the report may be recommitted ; ^'' or, where it is 
predicated on a petition, the petition may be referred to a commit- 
tee ; ^^ or a committee to whom a particular bill is committed may 
be authorized, by way of instruction, to report it as an amendment 
to that bill ; ^^ or the members appointed to prepare and bring in 
some other bill may be instructed to make provision therein for the 

1 Pari. Reg. LXII. 447, 448. 8 Comm. Jour. XXXI V. 183 ; Same, XXXV. 

2 Comm. Jour. LXXL 351, 352. 744, 762 ; Same, XXXVH. 844 ; Same, 
8 Comm. Jour. XXXIH. 667, 713. XXXVIIL 200; Same, XL. 915. 

* Comm. Jour. XXXIV. 208, 212, 214, 261. » Comm. Jour. XXXV. 822. 

6 Comm. Jour. XXXIIL 255. w Comm. Jour. XXXVL 895. 

« Comm. Jour. XL. 297; Pari. Eeg. (2), XVI. " Comm. Jour. XXXIX. 177. 

17. 12 Comm. Jour. XXXVI. 866. 
' Comm. Jour. XII. 359, 484. 



814 LEGISLATIVE ASSEMBLIES. [PaET VIII, 

subject of the order ; ^ or, the order may be discharged altogether, 
and renewed in part;^ or renewed VvT.th additional matter ;-5 or 
renewed in a modified,* amended,^ enlarged,^ or restricted," form. 
In like manner, when the members appointed to bring in a bill have 
been instructed to make a particular provision therein, the order for 
the instructions may be discharged, and other members appointed 
to prepare and bring in a bill as to that matter.^ 

2090. When it is desired to have the subject of a bill, for which 
leave has been granted, made into two, the course is to make a 
supplementary order, that the gentlemen appointed to bring in the 
bill, have leave to bring in a bill or biUs,^ or to discharge the order, 
and renew it for a bill or bills ; ^^ and, on the other hand, when it is 
deshed to unite into one two bills, which different sets of members 
or committees have been appointed to prepare and bring in, the 
course is to direct the two, or to authorize them, if they see fit, to 
meet and prepare one bill for the purposes of both.^^ 



Section II. Cojimittee to prepare and bring in a Bill. 

2091. It has aheady been stated, that a committee may not 
only be appointed to examine and report upon a matter referred 
to it, but, at the same time, also, it may be authorized to prepare 
and bring in a bill relative to the subject so referred. Where this 
course is pursued, the power of the house, to decide upon the ex- 
pediency or propriety of a bill relative to the subject in question, is 
delegated, in the first instance, and for the time being, to the com- 
mittee ; and the committee is furthermore charged with the duty of 
preparing and bringing in a biU, if they should think proper. It is 
not infrequent, also, after the house has resolved upon a biU, or at 
the same time that it resolves upon a bill,^^ ^q order the appoint- 
ment of a committee, in the usual manner, to prepare and bring it 
in. When this is the case, the committee is appointed in some 
one of the usual modes : the members named are caUed a com- 



1 Comm. Jour. XXXVI. 884, 889. i" Comm. Jour. XL. 852; Same, XLIII. 271; 

2 Comm. Jour. XXXVH. 40; Same, XLL Same, XLIV. 369, 423. 

809; Same, XLII. 706. s Comm. Jour. XXXI. 199; Same, XXXV. 

3 Comm. Jour. XXXVH. 125, 166. 762. 

* Comm. Jour. XXXVIII. 900, 1048; Same, » Comm. Jour. LVJl. 233. 

XLI. 877, 913; Same, XLIII. 302. w Hans. (1), H. 128; Pari. Reg. LXIL 200; 

5 Comm. Jour. XXXIV. 203; Same, XLII. Comm. Jour. LIX. 189, 206. 

696. 11 Comm. Jour. XIII. 865, 866 ; Same, XIX 

« Comm. Jour. XXX Vm. 514; Same, XLH. 361. .^ 

751; Same, XLIII. 159. ^ Comm. Jour. IX. 297. 



Chap. V.] drawing of bill. 815 

mittee ; they have such of the usual powers of a committee, — as 
to time of meeting, quorum, etc., as may be deemed necessary, con- 
ferred on them ; ^ and, when a bill is presented in pursuance of 
such authority, it purports to come from the committee.^ It is 
of course necessary, when a committee is appointed for the pur- 
pose of preparing a bill, that the members should act in the form of 
a committee, and not individually ; and, it is scarcely necessary to 
observe, that a committee for this purpose may be instructed in 
reference to the duties of their appointment, in the same manner as 
other committees. Committees, as we have seen, having no power, 
as incidental to their appointment, to report any thing more than 
their own opinion, concerning the subject referred to them, and not 
any act of legislation, for the consideration of the house to which 
they belong, however strongly they may be impressed with its ne- 
cessity or propriety ; this power being conferred on them in par- 
ticular instances, and occasionally, either on the appointment of 
the committee, or afterw^ards ; it has now come to be the general 
practice in our legislative assemblies to provide, by a standing rule, 
that all committees, whether permanent or occasional, may report 
by " bUl or bills or otherwise." In these cases, therefore, commit- 
tees may report, at once, as embodying their opinion, a bill or other 
act of legislation, which is entitled to be received and considered, 
in the same manner as if presented to the house by its special 
order. This power has sometimes been assumed. 



CHAPTER FIFTH. 

OF THE PREPAKATION OR DRAWING AND THE DIFFERENT PARTS 

OF A BILL. 

2092. A bill, when introduced into the house, should be as nearly 
as possible in that form, in which, if agreed to at aU, it may receive 
the sanction of the house ; or, in which, if not immediately ac- 
ceptable, it may most readily be amended, so as at last to be 
brought into the requisite form. This is the purpose in view in aU 
the proceedings which have thus far been described. But these 

Comm. Jour. XII. 12, 359, 484, 583. « Comm. Jour. IX. 314. 



816 LEGISLATIVE ASSEMBLIES. [PaET VIIL 

proceedings are only directory. It remains for the members selected 
to prepare the bill to execute the will of the house, so far as it has 
been made known. The dj-awing of a bill, — setting aside its im- 
portance as regards the character of the law which it may ultimatel)'- 
become, — is a matter of no trifling concern, with reference to its 
passing. It has been truly observed, that, " When a biU is hastily 
brought in, it generally requires mature dehberation, and many 
amendments in its progress through the two houses, which always 
take up a great deal of time : Whereas, when it is laaturely con- 
sidered, and fuUy concerted, before being brought in, the first 
draught of the bill is generally so perfect, that it requires but few 
amendments ; and the rapidity of its progress always bears a propor- 
tion to the maturity of its first concoction." ^ 

2093. In order to render the subsequent proceedings intelligible, 
it will be necessary to state and describe the several parts of a 
statute, considered in a parhamentary sense, that is, with reference 
to their form only. The diiferent parts, of which a statute may 
consist, and most of which are e-ssential to its existence, are, 1, the 
title ; 2, the preamble ; 3, the statement of the enacting authority ; 

4, the purview or body of the act, divided into its separate clauses ; 

5, the provisos ; 6, the schedules ; and, 7, the date or day of its 
receiving the royal assent. Of these diflerent parts, which may, 
properly enough, be found in every statute, the third and fourth 
only are indispensable. The title may be prefixed, if omitted ; 
the preamble is frequently dispensed with ; there is often no occa- 
sion for a proviso, or a schedule ; and a date may be supplied ; but 
mthout an enacting clause and a subject-matter there can be no 
statute ; and neither of these is of any force or validity as a statute 
vidthout the other. 

Section I. Title. 

2094. The title of an act is the short statement prefixed to it 
of the purpose or object which it has in view. In a legal sense, 
" it is true, that the title of an act of parhament is no part of the 
law or enacting part, no more than the title of a book is part of 
the book ; for the title is not the law, but the name or description 
given to it by the makers." ^ In a parliamentary sense, however, 
the title, though a formal, is nevertheless an essential and unpor- 

1 By Sir Charles Wager, Coram. Deb. XI. " By Holt, C. J. Wills v. Willim. Mod. Eep. 
116, 117. VI. 62. 



Chap. V.] drawing of bill. 817 

tant, part of a bill. It is usually indicated by the member or 
members, by whom the bill is drawn and presented ; but, if a bill 
is introduced without any title, one may be put to it by the clerk 
of the house in which it is presented. 

2095. The description of a bill, in the order by which leave is 
given to introduce it, is considered as indicating the title of the bill; 
so far, at least, that when a bill is pending, an order cannot prop- 
erly be made for leave to present another with the same title ; 
though the title may be so general in its terms, that different and 
even contradictory provisions might be comprehended under it.^ 
The title should consequently be as precise as the nature of the 
subject will admit ; and, in the house of commons, there are stand- 
ing orders, with reference to certain classes of biUs, which require 
that the precise duration of every new temporary law should be 
expressed in the title, and that in bills for the revival or continuance 
of acts, the title should enumerate the several acts to be revived or 
continued, by the year, chapter, and day of passing.^ 

2096. The title of the bill presented must agree with the descrip- 
tion of the bill in the order of leave. Thus, where leave was given 
to prepare and bring in a biU to amend an act with reference to the 
time of commencing certain prosecutions therein directed to be 
brought, and a bill was presented to amend the said act (but with- 
out specifying in what particulars) notice was taken that the title 
of the bill presented did not agree with the order of leave, and the 
bill was thereupon withdrawn.^ 

2097. In the house of commons, the title, by which a bill is 
introduced and read, remains the title through the whole proceed- 
ings, and is not susceptible of alteration or amendment, until the 
bill has passed ; unless the house should direct that one biU should 
be divided into two, or that two should be combined in one, in 
which case, a corresponding change must necessarily be made in 
the title. When a bill has passed in the commons, the title is read 
by the speaker, and a question put, " that this be the title of the 
biU." The title may then be amended, if necessary, or so altered, 
as to make it conformable to amendments, to which the bill may 
have been subjected since its introduction. In the house of lords, 
the original title of a bill may be amended at any stage at which 
amendments are admissible.* 

2098. It is a consequence of the practice of the house of com« 

Pari. Reg. LVL 130. s Comm. Jour. XLVIII 242, 340. 

Comm. jour. LIII. 84, 85. * May, 365. 

69 



818 LEGISLATIVE ASSEMBLIES. PaRT VIII. 

mons not to change the title of a bill, until after it has passed, that, 
when a biU is referred to a committee, the committee cannot, with- 
out special instruction for the purpose, make any amendment, alter- 
ation, or addition, which is not within the title ; the authority of 
the committee being restricted to proceeding upon a bill \\dth that 
title.i 

2099. The title of a biU has been deemed of so much impor- 
tance, in some of the States, that it has been made- in them the 
subject of constitutional enactment. Thus, the constitutions of 
New Jersey, Maryland, Virginia, Kentucky, Louisiana, Ohio, Indi- 
ana, Michigan, Iowa, and California, provide, generally, that no 
law shaU embrace more than one subject, which shall be expressed 
in its title ; that of Texas, that no law shall pass containing any 
matter different from what is expressed in its title ; those of New 
York, Illinois, Missouri, and Wisconsin, contain the same restTic- 
tions confined to private or local lav/s ; and those of Maryland, 
Virginia, Louisiana, Ohio, and California, provide also, that no law 
shall be revised, or amended, by reference to its title merely, but 
the act revised, or the section amended, shaU be reenacted and 
published at length. The constitution of New Jersey contains a 
statement of the reason on which its provision as above is founded, 
namely, to avoid the improper influences "which may result from 
intermixing in one and the same act, such things as have no proper 
relation to each other ; and the constitution of Indiana declares, 
that if any subject shaU be embraced in an act which shall not be 
expressed in the title, such act shall be void only as to so much 
thereof 



Section II. Preamble. 

2100. The preamble of an act is the recital, by way of introduc- 
tion, or inducement to the enacting part, of the reasons on which 
the enactment is founded. The preamble of a pubhc statute recites 
the inconveniences which it proposes to remedy, — as, that doubts 
exist as to what the law is, — or that some form of offence has been 
of frequent occurrence which it is necessary to punish with addi- 
tional severity ; or the advantages "which it proposes to effect, — as 
that it is expedient to revise, consolidate, and bring into one, all the 
statutes relating to a given subject. The reasons, upon which a 
pubhc statute is passed, are not generally of such a nature that 

1 May, 358. 



Chap. V.] drawing of bill. 819 

they can be defined with perfect precision, or enumerated in full ; 
hence, there may be reasons for the passing of an act, which are not 
given in the preamble ; those which are given may be aside from 
the real occasion of the law; and when doubts are alleged, it may 
be, that no reasonable or well-informed person ever entertained 
any.i The preamble of a private act sets forth the facts upon 
which it is founded ; and as these are the whole inducement for the 
enactment, it is necessary, that they should be fully and truly 
stated, and, as will be seen hereafter, substantially proved or 
admitted. According to the practice, therefore, which prevails in 
parliament, although the preamble may sometimes be omitted in 
public statutes, yet it is always inserted in private bills, and must 
be proved, in order to entitle the promoters of the bill to proceed. 
With us, it is not customary to set forth in the preamble of a pri- 
vate biU a summary of the evidence upon which it rests ; and the 
employment of a preamble probably depends for the most part, both 
in public and private bills, upon the taste of the individual drafts- 
man. For the purposes of amendment, the preamble is considered 
as a part of the bill to which it is attached. 



Section III. Statement of the enacting Authority. 

2101. The statement of the enacting authority, or, as it is called 
in the constitutions of the several States, the enacting style, follows 
immediately after the preamble, and is followed directly by the 
body of the act. In ancient times, this was expressed in the form 
of a petition to the king, which is stUl occasionally retained, but 
with the addition of a declaration of the advice and consent of the 
two houses. The modern style is as follows : May it therefore 
please your majesty that it may be enacted ; AND be it 
enacted by the king's most excellent majesty, by and with 
the advice and consent of the lords spiritual and temporal 
and commons, in this present parliament assembled, and by 
THE AUTHORITY OF THE SAME. This form is Only used at the begin- 
ning of an act ; each succeeding clause, where the act consists of 
more than one, commencing with the words, A?id be it enacted, or 
And be it fwther enacted, only. 

2102. The constitutions of all the States in the Union, except 
those of Pennsylvania, Delaware, Maryland, Virginia, North Caro- 

1 Dwarris, H. 657. 



820 LEGISLATIVE ASSEMBLIES. [PaET Vlll; 

Una, South Carolina, Georgia, Louisiana, Kentucky, and Arkansas, 
contain a statement, under the name of the enacting st^de, of the 
words T\dth which every act of legislation, in those States, respec- 
tively, must be mti-oduced, sometimes vidth, aftd sometimes without, 
the use of negative Avords, or other equivalent language. The con- 
stitutions of the States above named, and of the United States, 
contain no statement of an enacthig clause. Under those con- 
stitutions, therefore, an enacting clause, though equally requisite 
to the vahdity of a law, must depend mainly upon custom. The 
foregoing considerations seem to call for three remarks : I. Where 
enacting words are prescribed, nothing can be a law which is not 
introduced by those very words, even though others which are 
equivalent, are at the same time used. II. Where the enacting 
words are not prescribed by a constitutional pro^dsion, the enacting 
authority must notwithstanding be stated ; and any words which 
do this to a common miderstanding are doubtless sufficient ; or the 
words may be prescribed by rule.^ In this respect much must 
depend upon usage. III. Whether, where enacting words are pre- 
scribed hi a resolve or jomt resolution, can such resolution have 
the force of law ^dthout the use of those very words, is a question 
which depends upon each mdi\ddual constitution, and which we 
are not called upon at present to settle. The enacting style made 
use of at the present time in congress is not prescribed by any con- 
stitutional provision, or by any statute, or by any rule of proceed- 
ing, but rests entirely upon usage. 



SeCTIOX IV. PUEYIEW OR BODT OF TKE ACT. 

2103. This is the portion of a statute, in which the -^dH of the 
legislative power, v^dth respect to the particular subject, is declared. 
Where the subject of an act is at aU complicated in its character, it is 
usually divided into a convenient number of separate clauses, corre- 
sponding as near as may be to the several parts embraced in the 
enactment. The principal forms, in which the matter of a clause 
is expressed, are two, namely, a general declaration or statement in 
positive terms, and a similar statement vvdth a qualification of such 
general expression by means of a saving or exception. 

1 Rules cf :he hoise -^f representatives of the United States, for 1789; J. of H. I. 20. 



Chap. V.] drawing of bill. 821 



Section V. Provisos. 

2104. A proviso does not differ in its nature from an exception 
or saving; inasmuch as the purpose of it is to restrain or qualify 
some general expression. When such a qualifying or restraining 
provision constitutes a clause of itself, it is known by the name of 
a proviso ; when it makes a part of the clause which is affected by 
it, it is an exception or saying. The latter is usually incorporated 
in the biU, as it is drawn in the first instance, or is inserted by way 
of amendment, and thus makes a part of it when it is passed in 
one house and sent to the other. In a bill, which is drawn or 
passed in this form, the general and exceptional statements must 
consequently be considered as the expression of one and the same 
opinion, or of contemporaneous opinions. In the case of a proviso, 
it is otherwise. A proviso, strictly so called, does not generally 
make a part of the bill as originally draw^n ; it is either added by 
way of amendment in the house in which the bill first passes, or is 
introduced as an amendment in the other. It is consequently an 
expression of opinion subsequent to the general statement which it 
qualifies ; it is intended to control and modify that statement ; and 
it may be considered, in some sort, as a substitute for a redi-aft of 
the bill, which, at the stage when a proviso is usually attached, 
could not conveniently be done. Hence has resulted a principle of 
law, relative to the interpretation of statutes, which makes an im- 
portant difference between a saving clause and a proviso, namely, 
that where a saving clause in a statute is directly repugnant to the 
purview or body of the act, and cannot stand without rendering 
the act inconsistent and destructive of itself, the act must stand, 
and the saving clause be rejected ; ^ but that where a proviso is 
directly repugnant to the purview, the proviso should stand, and be 
held a repeal of the purview, on the ground that the proviso speaks 
the last intention of the lawgiver.'-^ The same distinction is also 
recognized in pleading ; an exception which makes a part of a 
clause must be negatived ; a proviso, strictly so called, which 
makes a clause of itself, need not.^ 

1 Plowden, 564. than as a legislator, remarks upon the case 

2 Fitzgibbon, 195. above cited from Fitzgibbon, " that a proviso, 

3 Jones V. Oxon, 1 Ld. Ravm. 120; S2ners v. repugnant to the purview of the statute, ren- 
Parher, 1 T. R. 141 ; Gill v. Scrivens, 7 T. R. ders it equally nugatory and void, as a repug- 
27; Steel v. Smith, 1 Barn. & Aid. 99. Chan- nant saving clause; and it is difficult to see 
cellor Kent, v/ho was doubtless more familiar why the act should be destroyed by the one, 
with the construction of statutes as a judse and not by the other, or why the proviso and 

69* 



822 LEGISLATIVE ASSEMBLIES. [PaET YIIl. 



SeCTIOX VI. SCHEDrLES. 

2105. The office of a schedule is to contain matters which can- 
not readily be reduced into ihe proper form for a clause, or which 
would be inconvenient to the reader, if inserted in the body of the 
act ; such, for example, as blank forms, tables, lists, etc. A schedule 
is properly a part of the bill to which it is attached. 



Sectiox VII. Date. 

2106. It was formerly the rule, as to the time when an act of 
parliament commenced its operation, that if no period was fixed by 
the statute itself, it took effect by relation from the first day of the 
session in which it passed, and which might be weeks, if not 
months, before the act received the royal assent, or even before it 
had been introduced into parliament. This rule was established in 
conformity T\"ith a common law notion, according to which a ses- 
sion of parliament, like that of a court of record, was accounted in 
law but as one day, namely, that on which it commenced.^ 

2107. This rule, though productive of injustice, even when the 
sessions of parliament ^\"ere compajatively shoii:, and of great hard- 
ship and oppression, when they attained the length of modern 
times, was not abrogated until towards the close of the last cen- 
tmy; when by the statute 33 George III. ch. 13, the rule was 
abolished " by reason of its manifold injustice," and it was enacted, 
that statutes should have effect only from the time of their receiv- 
ing the royal assent.^ The act also pro^ddes, that an indorsement 
shaR be made by "the clerk of the parliaments," that is, by the 
clerk of the house of lords, on every act of parliament, of the day, 
month, and year, when the same shall have passed, and shall have 
received the royal assent ; and that such indorsement shall be taken 
to be a part of such act. 

2108. The effect of this prmciple is abrogated, in this comitry, 

the saving clause, -svhen inconsistent with the haps have weU doubted, whether it was suffi- 

bodv of the act, should not both of them be cient and satisfactory. The legislation in this 

equally rejected;" Kent's Commentaries, I. country is probably so different from that of 

463, 4th ed. If the learned chancellor had England, in this respect, that it may be very 

been as familiar with the mechanism of Eng- questionable whether the distinction above 

hsh statute making, as he was with the doc- suggested ought to be recognized at aU. 

trines of English equity, he would have been ^ "^Tiitelocke, I. 230. 

at no loss for the reason of the distinction, -^n ^ Kent's Comm. I. 457. 
which he comments; though he might per- 



Chap. V.] drawing of bill. ' 823 

in one of two ways, either, first, by constitutional or legal pro- 
visions, operating generally upon all acts of legislation, or secondly, 
by particular clauses added to each, specifying the lime when it 
shall go into operation. In default of one or the other of these pro- 
visions, the principle of the common parliamentary law prevails. 



Section VIII. Of the general Preparation of a Bill. 

2109. In the preparation of a bill, two things are essential to be 
observed, first, that it correspond in substance, to the sense or 
wiU of the house, so far as the opinion of the house has been pre- 
viously expressed ; and, second, that it be drawn in a proper form. 
If a bill is improperly framed in either of these particulars, it can- 
not be allowed to proceed, as being against order, but by the unani- 
mous consent of the house.^ 

2110. Where a committee is appointed to consider a particular 
subject, with authority also to prepare and bring in such a bill rela- 
tive thereto, as the committee may think proper, it is only neces- 
sary that the bill presented should be relative to the subject-mat- 
ter referred, and that it should be properly drawn in point of form ; 
the terms and provisions of it are within the discretion of the com- 
mittee. 

2111. Where a committee is appointed, or a member or mem- 
bers directed or authorized, to prepare and bring in a bill for a 
purpose specified in the order,'- or in accordance with the prayer of 
a petition, on which the order is founded,'^ or upon the debates of 
the house, or upon heads, articles, or resolutions,'^ previously agreed 
to by the house, the bill presented must correspond with the sense 
or will, that is to say, the order, of the house so expressed. 

2112. The following examples wiU serve to illustrate the rule 
stated in the preceding paragraph : Leave being given to bring in 
a bill for regulating the expense at elections, it was decided, that 
a provision inserted in the bill relating to the qualification of 
members was unauthorized ; ^ leave to bring in a biU to repeal an 
act for the better relief and employment of the poor of certain 
parishes, was held not to authorize the insertion of a clause alter- 

1 Pari. Reg. (2), XVL 401. 3 Comm. .Jour. LV. 417; Sivme, XLTI. 524, 

2 Comm. .Jour. XLVL 611; Same, L. 374; 693, 695,705; Same, XXIX. 67; Same, XXXL 
Same, LL 609; Same, XLIL 528, 543; Same, 607; Same, XXXII. 843; Same, XXXIII. 
XLIV. 514; Same, XXIL 414; Same, 443; 210,211; Same, LXIX. 230. 

Same, XXXIII, 492, 554, 595; Same, LVL * Comm. Jour. XXIL 104. 
409, 504, 521. 6 jjiay, 350. 



824 LEGISLATIVE ASSEMBLIES. [PaRT VIIL 

ing the law of settlement ; ^ leave being given for a bill granting 
certain duties on certificates issued v^ith respect to the lulling of 
game, it was held not competent to insert in the bill a provision 
extending the license to all descriptions of people, as well unquah- 
fied as qualified ; ^ leave for a biU to prevent forgeries on bankers 
was not considered sufficient ground for the insertion in the bill 
of forgeries on any other persons.^ 

2113. In respect to the form, in which a bill ought to be pre- 
sented, it is immaterial by whom, or by what authority, it is 
drawn ; * it must, at all events, be drawn in conformity with the 
orders of the house, whether relating to the form of bills in general, 
or to particular classes of biUs. The principal orders in parlia- 
ment of a general character are, that a bill should be drawn in the 
form of a statute ; that it should be virritten on paper without 
erasures or interlineations ; ^ and that the proper blanks, for dates, 
and for the amount of salaries, tolls, rates, and other charges,^ shall 
be left in it to be filled by the house.'^ Besides these orders, 
there are standing orders relative to particular classes of bills, 
which are equally essential to be observed ; ^ as, for example, in 
reference to private bills, that inclosure biUs should have the names 
of the commissioners inserted,^ that a biU, to which the consent 
of parties is requisite, should correspond with the copy to which 
consent has been given.^*^ 

2114. Public bills are prepared, in the first instance, or caused 
to be prepared, by those members, who obtain leave for their in- 
troduction, or who are ordered by the house to prepare and bring 
them in. In the house of commons, the drafts thus made are taken 
to the pubfic business office, where they are prepared in proper 
form for presentation. Private biUs are prepared by the parties 
themselves, their attorneys or agents. It was anciently the practice, 
and is presumed to be so still, that " biUs are not written in para- 

1 Comm. Jour. LXXX. 329. sums, names, and dates, intended to be moved 

2 Pari. Reg. (2), XVI. 401. by the promoters of a bill. And when the 

3 Pari. Reg. LX. 285. bill is printed, they are printed in italics. 
* J. of H. 32d Cong. 1st Sess. 785. Passages so filled are still technically consiu- 

5 Comm. Jour. XXXVI. 703 ; Same, XLIII. ered as blanks. This practice, which seems 
467,468; Same, XXIX. 926; Same, XXXIII. to be a convenient one, has not yet been 
227; Same, 674; Same, LVII. 47. adopted in this country. May, 350. 

6 May, 350. * Comm. Jour. XXXVUL 925, 938; Same, 
■> Comm. Jour. XXXVI. 692; Same, XVIII. LXX. 209. 

426; Same, XXVI. 130, 145; Same, XXXIII. 9 Comm. Jour. XLVIIL 308, 346; Same, 

674; Same, LXVII. 511; Same, XX. 779. In- LL 495; Same, LV. 533, 565, 627. 

Btead of the passages actually left blank in a i" Comm. Jour. XXXV. 488, 489. 
bill, those parts are now flUed up with the 



Chap. V.] dkawing of bill. 825 

graphs, but all of a piece ; not that the clerks may read blank, 
but that there may be no forging in it." ^ Anciently, it was requi- 
site, that every bill, when presented to the speaker, should be ac- 
companied by a breviate or brief, that is, an abstract of the heads 
of the bill ; ^ and, unless so accompanied, the rule of the house of 
commons declared, that the speaker ought not to open any bill, or 
to command the same to be read.^ It was also necessary, when a 
bill was amended, that the brief should be amended and made to 
' conform to the amendments to the bill. The practice of preparing 
briefs has long been discontinued, as to public bills, but is still re- 
quired by the orders of the house of commons, as to private bills.^ 

2115. The rule of parliament, which requires that every bill 
should be drawn, both as to substance and form, in conformity 
with the orders of the house, would be nugatory, unless it was 
equally peremptory to prevent the introduction or proceeding with 
a bill which was improperly drawn. Hence it is the established 
practice that, whenever in the course of the proceedings on a bill, 
notice is taken by the speaker, or some member, or it appears to the 
house in any other manner, that the bill is di-awn contrary to order, 
the proceedings are at once arrested, and no further step can be 
taken with the bill, without the unanimous consent of the house.^ 
The form of proceeding with a bill is such, that defects of this 
description are not, in general, likely to be taken notice of, until it 
has been received by the house, or received and read the first time ; 
and sometimes the defect is not discovered untU a later stage ; but, 
if pointed out on a bill being presented, the defect would prevent 
the reception of it, in the same manner that a discovery after the 
reception wiU arrest the further proceedings. 

2116. When notice is thus taken that a bill is objectionable in 
point of order, the bill cannot proceed further without the unani- 
mous consent of the house, because it is against order, and every 
member has a right to require that the orders of the house shall be 
preserved ; nor can another bill be introduced without the like con- 
sent, because, whilst a bill is pending, no other of the same sub- 
stance, and for the same purpose, can be brought in consistently 
with order. The only course of proceeding, therefore, in such a 
case, is to withdraw the defective bill, and to obtain leave to pre- 

i Grey, IX. 143. out any objection on the ground of order, it is 

- Scobel, 41. held, in the house of representatives of the 

8 Comm. Jour. VI. 570. United States, that objections of that descrip- 

* Mav, 352. tion cannot afterwards be interposed to the 

» Pari. Reg. (2), XVL 401. Where a bill further progress of the bill. J. of H. 82d 

has been received and proceeded with, with- Cong. 1st Sess. 785. 



826 LEGISLATIVE ASSEMBLIES. [PaRT VIII. 

sent a new one in a proper form. If, on the defect being noticed, 
it is at once seen and admitted, the Mends of the bUl have no other 
course but to move, first, for leave to withdraw it, and then for 
leave to present a proper bill instead thereof; both which mo- 
tions are generally granted, as a matter of course, though there 
are instances in which the latter has been refused.^ If the defect is 
not manifest, or the friends of the bill are unwilling to yield the 
point without a question, those who are against the bill may move 
that it be withdrawn, or may make the supposed irregularity a 
ground of opposition to the next step in the progress of the bill. 
The proceedings which take place in the withdrawal of a bill, will 
be stated more particularly hereafter. 



CHAPTER SIXTH. 

OF THE PRESENTATION AND RECEPTION OF A BILL. 

2117. "When leave has been given, or an order made, for the in- 
troduction of a biU, as above mentioned, (unless it is founded upon 
the resolution of a committee of the whole for a charge upon the 
people,) 2 the biU may be brought in on the same day, and during 
the same sitting, with that on which the order is made or leave 
given.'^ There is no rule which prevents the immediate introduc- 
tion of the bill, upon the making of the order ; but, as the prepa- 
ration of a bill requires and implies consideration, it is deemed 
necessary that some time should intervene between the order for 
preparing it, and the presenting of it to the house,^ and, conse- 
quently, some votes are generally allowed to be passed, after the 
making of the order, before the bUl is introduced, even though it 
has been previously prepared, and is ready to be offered.^ 

1 Comm. Jour. LXIX. 230. • ^ May, 350. 

2 The standing order of February 18, 1667, * Comm. Deb. VII. 267. 

Comm. Jour. IX. 52, which requires that • ^ It is not unusual, however, for bills to be 
every proposition for a charge upon the peo- introduced immediately upon leave being 
pie, shall be refeiTed to a committee of the given, especially where the leave is for the in- 
whole house, provides, also, that it " shall not troduction of a new bill, in a proper form, in« 
be presently entered upon, but adjourned till stead of one which has been withdrawn. 
Buch further day as the house shall think fit Comm. Jour. LXVIII. 304, 323 ; Same, LXX. 
to appoint." 95. 



Chap. VI.] presentation and reception of bill, 827 

2118. In the house of lords, as has been abeady stated, it has 
always been and now is, the right of a member to present any biU 
or petition he may think proper, without a question. In the house 
of commons the same practice anciently prevailed. According to 
Hackwell, who states the practice in his time, bills were " either by 
some member of the house publicly presented to the speaker in the 
house, with some short speech, setting forth the needfulness of a 
law in that behalf, or delivered in private to the speaker or the clerk 
of the parliament, to be presented to the house at some convenient 
time." 1 At the present day, there must be leave or an order of the 
house, to authorize the bringing in of a bill, and the bill must also 
be offered and brought up in the same manner as a petition, in pur- 
suance of an order of December 10, 1692, which appears to have 
been observed as a standing order, namely, "that every member 
presenting any biU or petition, do go from his place, down to the 
bar of the house, and bring the same up from thence to the table." ^ 

2119. The bill must be presented by one of the members named 
in the order, or by one of the committee appointed to prepare and 
bring it in ; if ojffered by any other member, it cannot be received ; 
or if the irregularity is not observed, and the bill is received and 
proceeded with, its progress will be arrested and the bill ordered to 
be withdrawn, as soon as the irregularity is brought to the atten- 
tion of the house.-^ 

2120. The usual practice in presenting bills in the house of com- 
mons is thus described : — " The member, who has a bill to present, 
appears with it at the bar, and the speaker calls upon him by name. 
He answers, ' a bill. Sir ; ' and the speaker desires him to bring it 
up ; upon which he carries it to the table, and delivers it to the 
clerk of the house, who reads the title aloud ; when the bill is said 
to have been received by the house." * This proceeding, like many 
others in parliamentary practice, evidently supposes that a motion 
is made and a question put and decided, when, in fact, no motion 
or question is made, namely, a motion that the bill be brought up, 
and a question put thereupon, which is decided by the house in the 
affirmative ; otherwise, that would be true of the introduction of a 



1 Pari. Reg. LXII. 200; Hakewill, 132, 133. dren; but I, Mr. Speaker, have a bill here, 

" Mr. Bacon stood up to prefer a new bill, and which I know I shall no sooner be ready to 

said, Mr. Speaker, I am not of their mind that offer, but you will be i-eady to receive and 

bring their bills into this house obscurely, by approve." D'Ewes, 626. 

delivery only to yourself or to the clerk, de- " Comm. Jour. X. 740. 

lighting to have the bill to be incevio authore, ^ Comm. Jour. XXXIIL 255. 

as though they were either ashamed of their * May, 350. 
own work, or afraid to fivther theu* own chil- 



628 LEGISLATIVE ASSEMBLIES. [PaRT VIIL 

bill, which is not true of any future stage, in the proceedings upon 
it, namely, that a step may be taken in the progress of a bill, with- 
out a motion and vote of the house. The strictly parliamentary 
course, therefore, in the introduction of a bill, seems to require, that 
the member presenting or offering to present it should explain to 
the house, that the gentlemen appointed, or the committee, as the 
case may be, have, according to order, prepared such a bill which 
he is ready to present, and thereupon to move that the bill be 
brought up. This motion, being seconded, is then to be put to the 
house as a question ; and may then be debated, and proceeded with, 
generally, in the same manner as any other motion. 

2121. In our legislative assemblies, the ceremony of presenting 
a bill is attended with little or no formality. The member who is 
about to present a bill, whether as the report of a committee or 
otherwise, rises in his seat, and having obtained possession of the 
floor for the purpose, proceeds to inform the house, that he has a 
report and bill, from such a committee or source, which he reads, 
if he thinks proper, and thereupon offers to present the bill to the 
house. K no objection is made, the bill is of course presented and 
received. If any objection is made, this raises the question of 
reception, which may also be raised by a direct motion that the bill 
be or be not received. K the objection is on the gi'ound of order, 
a question is thus presented for the presiding officer to decide. K 
the point of order is overruled, or the house suffers the bill to pro- 
ceed notwithstanding, or a suspension of the rules takes place, 
then the question is to be put to the house, or it may be put in the 
first instance, if there is no question of order, that the bill be 
received. K this question is resolved in the affirmative, the bill is 
accordingly received and subsequent proceedings had thereon. 

2122. Another mode, in which a biU is introduced, is by mes- 
sage from the other house.^ When a bill has passed in one house, 
it is then sent to the other, with a message informing the latter, 
that the former has passed a biU, stating the title of it, to which the 
concurrence of the latter is requested. A question is always made, 
or supposed to be made, on admitting the messengers ; if they 
should be refused admittance, the bill or whatever else is the subject 
of the message is, of course, refused to be received. But, such a 
refusal, though possible, is a proceeding of so unparliamentary a 
character, as to be scarcely probable. When the messengers are 
admitted, they present the bill with which they are charged, which 

1 Cong. Globe, XVIH. 639. 



Chap. VIL] 



DIFFERENT STAGES OF A BILL. 



829 



is received and laid on the table. Bills presented in this manner, 
of which nothing but the titles can be previously known, are ordi- 
narily received without a question ; but there seems to be no good 
reason, why proceedings should not take place, after the message is 
delivered similar to those which occur when a bill emanates from 
a committee of the same house.^ 



CHAPTER SEVENTH. 

OF THE SEVERAL STAGES THROUGH WHICH A BILL PASSES. 

2123. BUls, thus received, whether presented by members, 
reported by committees, or sent from the other house, are, in all 
substantial respects, to be proceeded with in the same manner, 
through the several stages, which have been established by usage 
for the passing of bills. At each of these different stages every 
bUl, in a parliamentary sense, presents a new question, although it 
may, in fact, be the same which has been formerly considered. 
These several stages have never been departed from, although they 
depend upon usage merely, and are as much in force, and as funda- 
mental in our legislative assemblies as in parliament. The nature 
of the different stages, through which each bill must pass, in its 
progress, before it becomes a law, wiU be stated more fully, as we 
proceed. They suppose an interval of some time between one stage 
and another, and this interval is ordinarily one day at least between 
the principal stages ; but they may be shorter, and there is nothing, 
in the usage, to prevent bills from being passed through all their 
stages, and in both branches, in one and the same day, if the respec- 
tive houses so determine.^ The differences, between the proceed- 



1 See J. of S. 27th Cong. 3d Sess. 271. 

2 It was said by Mr. Fox, in debate, — " In 
the honse of commons, the form of passing a 
bill of importance required that it should go 
through several stages. It was first (that is, 
the subject) committed, which was the Jirst 
stage; it was then reported, this was the 
second; the report was read a second time, 
which was the third; leave was then asked 
to bring in a bill to carry the resolutions into 

70 



effect, which was the fmirth ; it was then 
brought in, which was tlie ffih ; it was after- 
wards read a first, secmul, and third Dime, 
which made eiyht; and the passing made nine 
stages, in which a bill must pass, before it left 
that house. The reason of these different 
stages was, in order to give parliament an op- 
portunity of so many different times for con- 
sidering its tendency, before they finally gave 
their concurrence to its passing. It might 



830 LEGISLATIVE ASSEMBLIES, [PaRT VIII. 

ings upon a bill in the house in wliich it is first introduced, and in 
that to "^'hich it is sent, relate chiefly to the engrossment, and to the 
manner in which the bill is amended. These differences, as well as 
those particulars in which the proceedings of the two houses differ, 
in other respects. vnR be pointed out in their proper places. 

2124. The different stages of a bill, or readings, as they are 
called, have been thought so important in this country, that in some 
cases, they are made the subject of constitutional provision. In 
the constitutions of New Jersey and North Carolina, it is required 
that every bill, before it becomes a la^\', shall be read three times in 
each house. These readings, for aught that appears, may be on 
the same day, and there is no power conferred on either branch to 
dispense with the rule. In the constitutions of Maryland, South 
CaroLuia, Georgia, Florida, Alabama, JMississippi, Louisiana, Ten- 
nessee, Kentucky, Ohio, Indiana, Illinois, Arkansas, and Texas, it 
is required, in differing phraseology, that every bill, before it becomes 
a law, shall be read on three separate days in each house ; in that 
of Vu'ginia, the readings are required to be in the house in which a 
bill originates ; but this rule may be dispensed with by a vote in 
Maryland, Ohio, and Illinois, of three fom-ths ; in that of Virginia, 
Indiana, and Arkansas, of two thuds ; in Florida, Alabama, Mis- 
sissippi, Louisiana, Kentucky, and Texas, of four fifths. In South 
Carohna, there is no power to dispense vnth the rule ; in Georgia, 
the ground of dispensation is actual invasion or insurrection ; in 
Tennessee, the readings are required to be in the house in which 
the bill originates, and there is no power conferred to dispense with 
the rule ; and in Indiana, the reading is required to be by sec- 
tions. 

2125. The different stages or steps, through which a bdl must 
regularly pass, in its progress in each house, were the invention of 
an early period of parliamentary Mstory, when the accomplishments 
of reading and "v^Titing were not so general as they now are, and 
when the art of printing was either unknown, or very Kttle prac 
tised.^ The principal of these stages were the several readings, 

pass the committee, report, first, second, and representatives, to be exceedingly cautions of 

third reading, and yet be rejected by parlia- any measure being adopted, -svhich might 

ment discovering some improprieties vrhich tend to preclude them from the free and un- 

they had not before observed. This law, limited exercise of their judgments, on every 

therefore, was exceedingly wise: for nothing subject in which the interests of the country 

required more deliberation than law which were essentially dependent." Pari. Eeg. (2), 

should be enacted for the welfare, protection, XXL 393, 394. 

and government of the people; and therefore i "Before the invention of printing, and 

it became the constitutional guardians, the when the art of printing was unknown to three 



Chap. VII.] different stages of a bill. 831 

which, as the term denotes, every bill received, in order that its con- 
tents might be fully known and understood. At each of these 
stages, the bill was read at length by the clerk in the hearing of 
the house, and was then " opened," that is, a brief summary of its 
contents stated, by the speaker. 

2126. The first reading was for information merely, as to the 
nature of the provisions, which thus claimed the attention of the 
house. If the bill as a whole was favorably received, it was ordered 
to be read a second time. After the second reading, it was debated 
both as to matter and form. If the matter was approved of, but 
the form was unsatisfactory, the bill was referred to certain mem- 
bers selected for the purpose by whom the bill was carefully revised, 
and who suggested to the house such alterations as they deemed 
necessary. This proceeding was denominated the commitment. 
The house then went through the bill for the purpose of amend- 
ing it, according to the suggestions of the committee, and in such 
other mode as they might think proper. 

2127. When all the alterations had thus been made in the bill, 
which were necessary to put it into a proper form, it was then 
ordered to be engrossed, " which is no more than to transcribe the 
bill fairly out of the paper, in which it was written, into parch- 
ment." ^ The purpose of this proceeding was merely to make a 
clean copy of the bill with the amendments in their places, on a 
permanent and substantial materii^. 

2128. When engrossed, the bill was then read a third time, for 
the obvious purpose of enabling the house to judge, first, whether 
it was in the form in which it had been agreed upon, and secondly, 
whether, in that form, it expressed the deliberate sense or will of 
the house. It might still be amended, if necessary, provided the 
amendments were such as could be conveniently effected in the 
bill in its engrossed form, without requiring it to be reengrossed. 

2129. The final question was then put upon its passage. If 
this was assented to, the biU was sent to the other house to be 
there proceeded with in substantially the same manner. These 
several stages are still in use in the passing of bills ; the engross- 

fourths of the deputies of the nation, to sup- antique regulation. These three readings 

ply this deficiency, it was directed that every have served to mark three distinct degrees — 

bill should be read three times in the house, three epochs — in the passing of a bill, at each 

At the present day, these three readings ai-e of which the debate upon it may be recom- 

purely nominal; the clerk confines himself to menced at pleasure." Bentham, Political 

reading the title and the first words. But a Tactics, Works, II. 353. 

most important eifect has resulted from this i D'Ewes, 18. 



832 LEGISLATIVE ASSEMBLIES.' [pAKT VIII. 

ment being of course omitted, when the bill, lia\dng first passed in 
the other house, is already engrossed. 

2130. The proceedings -^-ith reference to bills, though the stages 
remain substantially the same, as when they were first estabHshed, 
have nevertheless undergone an important change, since that pe- 
riod. At the time alluded to, it was the custom of parliament, as 
has already been stated, for the speaker to frame the several 
questions for the decision of the house, from the turn of the debate ; 
and this practice prevailed in the proceedings on biUs, as well as 
Vk'ith reference to other matters. Motions were occasionally made, 
as in modern times ; but, in general, the com'se of business v^^as 
suggested or rather dictated by the speaker. In regard to bills, 
the discretion of the speaker was governed by certain rules, v^'hich 
were intended both to facilitate the expression of the ^dll of the 
house, and to secure the due and proper degree of deliberation. 
These rules are fully explained by Hakewell and Scobell, in their 
treatises ; and will now be stated so far as may be necessary to 
give an idea of the system to which they belong. 

2131. It was usual for the speaker to direct the clerk, both as 
to the biUs to be read, and as to the time of reading them ; the 
house sometimes interfering for the purpose of having a particular 
bill read ; and the general practice being, to devote the morning to 
first readings, and to defer second or third readings until the house 
had become fuU. It was against the ordinary course, also, to read 
a biH more than once on the same day ; still this might be suffered 
for special reasons, especially when the house T^'as in want of 
business " wherein to employ themselves," but only upon motion 
and special order.^ 

2132. At the first reading, it was not the course to speak to the 
bill, as a whole, but to take time till the second reading, to consider 
of it. Nor was it allowable to speak to particular parts of it, or to 
propose any addition ; as that would imply that* the bill itself was 
good, which could not regularly be determined until the second 
reading. It sometimes happened, however, that the merits of a 
bill were gone into upon the first reading, especially where it was 
objected to on the ground of its being inconvenient and hurtful to 
the commonwealth, and therefore not proper for the consideration 
of the house. K a biH originally begun in the commons Avas there 
debated, and the question was called for by the house, the speaker 
did not put it, whether the bill should be read a second time, " foi 

1 Hack-sviU, 137, 139, 142. 



Chap. VII.] dipferent stages op a bill. 833 

so it ought to be of ordinary course," but whether it should be re- 
jected. If the bill had come from the lords, the speaker, " in favor 
and respect thereto," did not make the question, in the first in- 
stance, for rejection, but for the second reading, and, if that were 
denied, then for rejection. But, usually, in the case of a debate 
upon a first reading, the speaker forbore to make any question at 
aU, unless he was much pressed.^ 

2133. When a bill had been read the second time, if no man 
spake against it either for matter or form ; or if several members 
spoke for the bill, without taking any exception to the form of it ; 
the speaker, if the biU originated in the commons, made the ques- 
tion for the engrossing. If, as was usually the case, the house 
called for the committing of the bill, the first question was made 
for the commitment ; and if that was refused, then a second ques- 
tion for the engrossing. In the case of a bill from the lords, which 
had been read the second time, the first question was for the com- 
mitment; if that was negatived, the biU was then read a third 
time (being already engrossed), and the question put for its pas- 
sage.^ Such was the method of proceeding anterior to and at the 
time when the authors above mentioned compiled their respective 
works. 

2134. According to the modern practice, each of the diflferent 
steps in the progress of a biU can only be taken in pursuance of a 
motion regularly made and seconded, or supposed to be so, and re- 
solved in the affirmative by the house ; and, if, at any point in the 
regular course, the proper motion for proceeding with the biU is not 
made, it remains precisely in the state in which it is thus left. 
Thus, when a bill is received, it is laid on the table, and remains 
there without being read, until a motion is made for the first read- 
ing ; so, when a bill has been read the first time, no further pro- 
ceeding takes place, as a matter of course, but a motion must be 
made and seconded for the second reading. All the other proceed- 
ings must, in like manner, be instituted by motions regularly made 
and seconded, without any interference or direction on the part of 
the speaker. K the proper motion for proceeding with a bill, at 
each of its several stages, is not regularly made, the biU is said to 
be dropped. 

I HackwiU, 140, 141. a HackwiU, 143, 144. 

70* 



834 LEGISLATIVE ASSEMBLIES. [PaE,T VIII. 

CHAPTER EIGHTH. 

OF THE riEST READING OF A BILL AISTD ORDER FOR SECOND. 

2135. A bill having been received as above mentioned, it is then 
in order to move that it be read, or, which is the same thing, that it 
be read the first time. If this motion is decided in the affirmative, 
the next step is to fix the time on which the first reading shall take 
place ; if in the negative, the bill cannot be read at all, or pro- 
ceeded with any further ; because no subsequent step in the pro- 
ceedings can be taken but in regular course, and a question once 
decided in the negative cannot be renewed in the same session of 
parliament. The motion for the first reading need not be made on 
the day on which a bill is received, but may regularly be made at 
any time afterwards.^ In the mean time, the biU may be suffered to 
lie without any order, or the house may order it to lie on the table, 
generally, or to lie for a certain number of days before being 
read.2 

2136. In order to fix upon the time for the first reading, the mo- 
tion must be either that the bill be now read a first time, or that 
it be read a first time on a subsequent day named. The motion 
for present reading may be put to the question as it stands, or it 
may be amended. In the former case, if decided in the affirmative, 
the bill is to be read immediately. If decided in the negative, the 
bill cannot be read on the same day, nor can a motion be regularly 
made for that purpose, because the house has akeady decided, that 
it shah, not be read on that day ; bat the bill may be read on any 
other day, and, consequently, a similar motion for present reading 
may be made on the next or any succeeding day, or a motion may 
be immediately made for the first reading on some future day.^ 
This latter motion is subject to be proceeded with in the same 
manner as if it had been made in the first instance, except that it 
cannot be regularly amended so as again to become a motion for 
present reading, which the house has akeady decided in the nega- 
tive. 

2137. The motion for present reading, that is, that the bUl be 
now read, is also subject to be amended, by leaving out the word 

1 DwaiTie, L 140. s Comm. Jour. XXXIV. 291. 

2 Comm. Jour. XII. 586, 606, 624. 



Chap. VIIL] first reading of bill. 835 

•' now," and substituting therefor some other time. A motion in 
this form, namely, to leave out and insert or add, as has already 
been stated in another place, requires two questions, first, whether 
the ^Crord proposed to be left out shall stand part of the question, 
and second, if that question is decided in the negative, whether the 
words proposed as a substitute shall be inserted or added. If the 
first question is decided in the affirmative, the proposed amendment 
is negatived, and no other or further amendment, which proposes to 
leave out that word can be moved ; but the motion stands as orig- 
inally moved, and must be put to the question for the present read- 
ing. If the first question is decided in the negative, namely, that 
the word " now " shall not stand part of the question, this is a 
negative of the motion for the present reading, and the second 
question is then to be put, namely, whether the words proposed as 
a substitute shall be inserted or added. On this question being 
proposed, it may be moved to amend it, by leaving out and insert- 
ing or adding as before.^ If the amendment to the motion for the 
present reading is moved by the friends of the bill, it is, of course, 
for the purpose of fixing on a convenient time within the session 
for proceeding with it ; if by the opponents, it is for the purpose of 
defeating the measure, by fixing upon a day for the reading beyond 
the probable duration of the session. In the first case, if, on the 
first question, that is, on retaining the word now, which is proposed 
to be struck out, that word is left out, the opponents of the biU 
may move to amend the second question, so as to postpone the 
reading beyond the session ; and, in the other case, if, on the first 
question, the word now is left out, the friends of the bill may move 
an amendment to the second question, so as to have the bill read 
on some convenient day within the session. 

2138. The motion for reading the bill on a future day named, 
may also be put to the question as it stands, or it may be amended. 
If thus put to the question, and decided in the affirmative, the bUl 
is accordingly ordered to be read the first time on the day named ; 
if decided in the negative, the same question cannot be again 
moved, but a motion may be made for the present reading, or for 
the reading on any day other than that upon which the decision of 
the house has already been pronounced. A motion for present 
reading, made after a decision in the negative of a question for 
reading on a futme day, is subject to be proceeded with in the same 
manner as if originally made, except that no amendment of it is 

1 Comm. Jour. LII. 601. 



836 LEGISLATIVE ASSEMBLIES. [PaET VIII. 

allow^able, NA*hich presents the question already decided. The mo- 
tion for reading on a future day may also be amended, by leaving 
out the day named, and substituting therefor the present reading, 
or the reading on some other day, either more remote or nearer than 
the day named. This motion may be proceeded '^dth in the man- 
ner akeady mentioned with reference to a motion to amend the 
motion for present reading. 

2139. The regular course of proceedings, as above described, re- 
quires that a bill should first be ordered to be read, and that when 
the reading has been agreed upon, the time for it to take place 
should be fixed. But, in practice, the first motion usually made is, 
that the bill be now read the first time, or that it be read the first 
time on such a day. These motions, when thus made in the first 
instance, are subject to be proceeded \\dth in the same manner, as 
when made after the house has first ordered the bill to be read. 

2140. When a time is fixed for the first reading on a future day, 
the reading becomes an order of the day for that day. Before the 
day arrives, the order may be read and discharged ; in Tv^hich case 
the bill remains in the same state in which it was when the order 
was made ; and the proceeding upon it must afterwards be re- 
newed from that point. On the day assigned, the order is read and 
proceeded upon in the usual manner. 

2141. When the house has come, in any of the modes above 
described, to a resolution for the present reading of a bUl, it is there- 
upon to be read immediately by the clerk. The ceremony attend- 
ing this proceeding in the house of commons, is thus described by 
HackwiU : " The clerk, with a loud and distinct voice, fijst readeth 
the title of the bill, and then after a httle pause the bill itself; 
which done, (kissiag his hand,) he delivereth the same to the 
speaker, who standeth up uncovered, (whereas otherwise he sitteth 
^dth his hat on,) and holding the bill in his hand, saith, this biU is 
thus entitled, and then readeth the title, which done, he openeth to 
the house the substance of the biU, which he doth, either trusting to 
his memory, or using the help, or altogether the reading of his bre- 
viate, which is filed to the bill, sometimes reading the biU itself. 
When he hath thus opened the efiect of the bih, he declareth to 
the house, that it is the first reading- of the bill, and dehvereth the 
same again to the clerk." ^ In the house of lords, according to 
Elsing, "the clerk reads the bill, standing at the table, and then 
delivers the same kneeling, unto the lord chancellor, together v%T.th a 

1 Hack-K-m, 137, 138. 



Chap. VIIL] fikst reading or bill. 837 

brief of the bill. The lord chancellor reads the title of the bill, and 
then reports the effect of the same, out of the brief, and concludes 
this is the first time of the reading of this bilV' ^ The practice, as 
described by these authors, was that which prevailed two hundred 
years ago. In modern times, no essential difference has taken 
place, except that public bills are not now accompanied by bre- 
viates, and it is not the custom to read any bill at length. The 
necessity for reading is superseded by printing ; and the rule which 
requires a bill to be read is now satisfied by reading the title and a 
few of the first words. The ceremony above described is to be re- 
peated, when a biU is read the second, or third time. 

2142. As the contents of a bill cannot regularly be made known 
to the house, until it is read, it is not usual for the motion to read 
a bill the first time to be opposed ; ^ it is, however, perfectly in order 
to oppose the bill in this stage, and for a debate to take place on 
this,^ or any other of the motions above mentioned. A debate on 
this motion must necessarily be confined to the principle of the biU, 
or rather to its contents as they are set forth in the title.'* 

2143. The ancient practice, with regard to the first and second 
reading of bills, having been substantially adopted, in the house of 
representatives of congress, by a rule first adopted in the code of 
1789, which has been extensively copied in other systems of rules 
and orders, that rule will be stated, and the practice under it, before 
going on with the regular course of proceeding. 

2144. The rule in question is as follows : — " The first reading 
of a bill shall be for information, and, if opposition be made to it, 
the question shall be, ' Shall this biU be rejected ? ' If no opposi- 
tion be made, or if the question to reject be negatived, the biU shall 
go to its second reading without a question." 

2145. In the construction of this rule, it has been decided, that it 
applies as well to bills introduced on leave,-5 and to bills from the 
other branch,*" as to bills reported by committees of the house itself, 
or introduced in any other manner, and read a first time ; in regard 
to which, if any objection is stated to their further progress, or any 
motion is made which implies opposition, the question is to 1 e 
stated by the speaker on rejecting the bill in question ; and this 
objection, after being made and persisted in, may be withdrawn at 

1 Elsing, Harl. Misc. V. 211. 5 j. of H. VIIL 292. 

2 Cav. Deb. L 23. « J. of H. II. 187, 583; Same, III. 274; 
» Cav. Deb. L 25; Pari. Reg. XXIL 189, 200. Same, VIIL 665; Same, IX. 333; Same, 14th 
* Pari. Reg. XVIIL 472; Same, XLIIL 151, Cong. 1st Sess. 151; Cong. Globe, XXI. 1683 

!65, 156. 



838 LEGISLATIYE ASSEMBLIES. [PaET VIIL 

any time before the question is taken.^ This question may be sus- 
pended by being laid orer,'^ under the rule ; by lapse of time; ^ or by an 
adjournment of the house.* On this question, there may be a call 
of the house,^ or the previous question may be moved ; ^ but after 
being several times held in the afEi'mative, that the bill may be laid 
on the table," or that it may be postponed to a day certain or in- 
definite,^ it is now decided^ that neither the bill itself, nor the ques- 
tion of its rejection, can be ordered to lie on the table. K objection 
is made and withdrawn, or if no objection is made, or if the ques- 
tion of rejection is decided in the negative, the bill goes to its 
second reading, either immediately, or on the next or some suc- 
ceeding day, according to the determination of the house, ^dthout 
any further question.-*^ "We now resume the regular progress of the 
bill when there is no rule similar to the above. 

2146. When a bill has been read the first time, the next step in 
its progress is a motion that it be read a second time ; which mo- 
tion may be made immediately, or may be deferred to another day. 
If this motion is decided in the affirmative, the next step is a motion 
to fix upon the time for the second reading ; if, in the negative, the 
bill cannot proceed further, for the reasons aheady mentioned, with 
reference to a negative decision of the question for reading a biU 
the first time. 

2147. In fixing upon the time for the second reading, the pro- 
ceedings are similar to those which take place in fixing upon the 
time for the fijst ; but, as in the ordinary progress of a bill, an in- 
terval of one day at least is allowed to intervene between the sev- 
eral stages subsequent to the first reading, it is not usual, when 
the order for the second reading is made on the same day on which 
the bill has been read the first time, for the second reading to take 
place immediately, but to be deferred until a future day. It is 
allowable, however, on extraordinary occasions,^^ to pass bills 
through more stages than one, and even through aU their stages, 
and in both houses, on the same day. In reference to the occa- 
sions on which bills are thus forwarded or passed with extraordi- 

ij. of H. 23d Cong. 2d Sess. 323, 368; 1st Sess. 151; Same, loth Cong. 2d Sess. 223; 

Cong. Globe, XII. 167. Same, 21st Cong. 1st Sess. 257,268; Same, 

2 J. of H. 26th Cong. 1st Sess. 737. 24th Cong. 1st Sess. 585; Eeg. of Deb. \a. 

3 J. of H. 21st Cong. 1st Sess. 257, 258. Part 2, 1049. 

* J. of H. n. 167; Same, IX. 333; Same, 474. ^ j. of H. 14th Cong. 1st Sess. 151. 

6 J. of H. 21st Cong. 1st Sess. 257, 258, 669. 9 J. of H. 23d Cong. 2d Sess. 323; Eeg. of 

6 J. of H. 22d Cong. 2d Sess. 325, 326, 327; Deb. VII. 574; Same, XI. Part 1, 1168, 1169, 
Eeg. of Deb. M. Part 2, 1049 ; Cong. Globe, w Eule 116. 

XXI. 1682. " J. of H. I. 400, 597; Ann. Cong. 4th Cong, 

7 J. of H. IX. 333, 474; Same, 14th Cong. 2d Sess. 1576; Same, 9th Cong. 2d Sess. 108. 



Chap. VIIL] first reading of bill. 839 

nary despatch, it is sufficient to observe, that even where two or 
more stages are taken on the same day, for peculiar reasons, this 
departure from the ordinary practice, although it requires in some 
cases certain proceedings to be superadded, does not make it neces- 
sary that any alteration should take place in those which ordinarily 
occur. In general, an interval of some days is suffered to elapse 
between the first and second readings. If debate takes place on 
the motion for the second reading, it must be confined to the prin- 
ciple of the bill,i and cannot be extended to embrace the particular 
provisions, except so far as may be necessary, in order that the 
principle of the bill may be known there from.^ 

2148. "When a bill has been ordered to be read a second time, 
and a day fixed for the second reading, it is usual to make an order, 
on motion, that the bill be printed ; so that its contents may be 
published and distiibuted to every member, before the second read- 
ing. Every public bUl, in both houses of parliament, is now 
ordered to be printed, except ordinary supply biUs, which merely 
embody the resolutions of the committees of supply and of ways 
and means, as agreed to by the house, and the annual mutiny biUs, 
which are the same, with very few exceptions, year after year.^ 

2149. A bill having been ordered to be read a second time, and 
a day appointed for the purpose, it is not in order to anticipate the 
time, that is, to order it to be read sooner than the day originally 
fixed ; but the reading may be postponed to a day more remote. 
In order to do this, the course is, on any day subsequent to that on 
which the day for the second reading was appointed, (for no order 
inconsistent with that can be made on the same day,) to move that 
the order of the day, for the second reading of the bill on the day 
fixed, be read, for the purpose of postponing it. If this motion is 
carried, the order is read accordingly. A motion is then to be 
made, that the order be discharged. If this motion prevails, a 
motion may then be made for the second reading, on any day sub- 
sequent to that originally fixed. On this motion, amendments may 
be moved, in the manner already described, but not so as to antici- 
pate the time originally fixed. The motion may also be negatived 
altogether, in which case, the state of the business is, that the bill 
has been ordered to be read a second time, but no time fixed for 
that purpose. This is also the case, when a biU has been ordered 
to be read a second time, on a particular day, and on that day the 

1 Hans. (1), II. 1026. » May, 351. 

« Hans. (3), XXVI. 856. 



840 LEGISLATIVE ASSEMBLIES. [PaET VIIL 

house fails or is adjourned for want of forty members, or the day- 
elapses without the order being proceeded with. 

2150. When a bill has been ordered to be read a second time, 
but no time fixed therefor, it may on some subsequent day be read 
a second time, on motion that the bill be now read the second time, 
without any time being fijst fixed ; or the house may then proceed 
to assign a time for the second reading. 



CHAPTER NINTH. 

OF THE SECOND READING, AND ORDER TOR COMMITMENT. 

2151. The second reading, as has been seen, may take place im- 
mediately on being ordered ; or on some subsequent day, no time 
being fixed, or the time originally fixed having failed or been abro- 
gated; or on some subsequent day, at the time fixed. The pro- 
ceedings preliminary to the second reading, when no time is fixed 
therefor, have already been sufficiently explamed. When a time is 
fixed for the second reading on a subsequent day, the second read- 
ing is an order of the day, and stands in the order book in its place 
with the other orders, if any, for that day. When that day arrives, 
the order of the day for the second reading is read and proceeded 
upon, AA-ith the other orders of the day. 

2152. The first step in the proceedings is a motion for the read- 
ing of the orders of the day, or the order of the day for the second 
reading of the particular bOl. If this motion is decided in the af- 
firmative, the order of the day is read accordingly, and then it is in 
order to proceed with the biU. The next step in the regular course 
of proceeding is a motion that the bill be now read the second time ; 
on which the proceedings already indicated, mth reference to the 
present reading of a bill the first time, may take place. A motion 
may be made, however, to discharge the order for the second read- 
mg, or to make a new order for it on some future day. This last 
motion may be made use of by the opponents of the bill, for the 
purpose of defeating it, by postponing the second reading to a day 
beyond the session. 

2153. It is deemed proper, however, to allow the friends of a bill 
to proceed with it in the mode which they think most advisable. 



Chap. IX.] second reading of bill. 841 

either by moving for the present reading, or by postponing it to a 
more convenient time. According to the usual practice, therefore, 
the member who has charge of the bill moves " that the biE be 
now read the second time." This motion, as the house has already 
made an order that the bill shall be read a second time on that day, 
need not be seconded ; and the same rule applies to other similar 
stages. The opponents of the bill, if it has any, may simply vote 
against the question, and so defeat the second reading on that day ; i 
but, as, in this case, a motion might be immediately made to fix a 
time for the second reading on some other day, or the biU might be 
proceeded with on any other day, without first fixing the time, very 
little is gained by arresting the progress of the bill for one day only. 
The ordinary practice,* therefore, is, to move an amendment to the 
question, by leaving out the word now, and adding three months, 
six months, or any other term beyond the probable duration of the 
session. The postponement of a biU, in this manner, is regarded as 
the most courteous method of dismissing the bill from any further 
consideration, and is consequently the usual method resorted to in 
every stage of the proceedings, except on questions for the engross- 
ment or passing of the bill. Another reason, which may be given 
for making use of this mode of defeating a bill, is, that as the house 
has already ordered, that the bill shaU be read a second time, and 
the proposed amendment only names a more distant day, the order 
of the house, although in fact abrogated or rescinded, is stiU pre- 
served in point of form.^ 

2154. This stage, embracing all the proceedings which take place 
on the day assigned for the second reading, is regarded as the most 
important through which the bill has to pass. On some one or 
more of the motions that may then be made, the debate takes place 
on the merits of the bill, — the principle of it alone being open for 
discussion, — unless there is an understanding among the members 
interested, on the one side and on the other, that the merits of the 
bill shall be discussed at a later stage.-^ Understandings of this 
description are, of course, of no binding obligation on the house, or 
even on the members by whom they are entered into. 

2155. The second reading is the stage, at which parties are most 
commonly heard, by themselves, or by their counsel, or agents, and 
to examine witnesses, whenever a hearing has been ordered by the 
house. But, as a hearing may also take place at various other 

1 Comm. Jour. LXXXVIIL 399. s May, 353. 

2 May, 352, 353. 

71 



842 LEGISLATIVE ASSEMBLIES. [PaET VIIL 

stages, besides the second reading, this proceeding is treated of by 
itself, in the fifth part. 

2156. When the present readmg of a bill the second time has 
been resolved upon, the bill is to be read by the clerk, with the 
same ceremonies, and in the manner aheady mentioned, with refer- 
ence to the first reading. When read the second time, the next 
step in the regular progress, according to the modern practice, is the 
commitment; for which purpose, a motion is to be made and 
seconded, that the bill be committed. K this motion is decided in 
the affirmative, the next motion in regular course is, that the bill be 
referred to a select committee, or that it be referred to a committee 
of the whole house. A pubhc bih is usually committed to a com- 
mittee of the whole ; a private bill to a select committee ; though 
there are. instances, in which the reverse of this has taken place. 

2157. If a select committee is moved for, an amendment may be 
proposed, to substitute therefor a committee of the whole ; ^ or, if a 
committee of the whole is moved for, the motion may be amended, 
so as to make the committee a select one. In these cases, the form 
of the amendment is such, namely, by leaving out and inserting, 
that the question first taken is equivalent, in general, to the motion 
itself, that is, whether the words proposed to be left out shall stand 
part of the question ; though, as those who vote in the affirmative 
on this question only indicate thereby their preference for the 
motion as it stands, over any form in wMch it may be put by 
amendments, the first question may be decided in the affirmative, 
and the motion itself in the negative. 

2158. If the bin is referred to a select committee, the members 
are appointed, and the usual directions as to meeting, etc., are 
given to them in the ordinary manner. If the biU is committed to 
a committee of the whole house, it remains to fix upon the time for 
the house to resolve into the committee. A motion may be made, 
either that the house will immediately, or that it will on some other 
day, resolve into the said committee ; and, on these motions, 
amendments may be moved in the manner already suggested. K 
there is any rule, in the particular assembly, in which the proceed- 
ing takes place, in regard to the appointment of committees, those 
provisions are, of course, to be pursued. 

2159. The order for commitment may be discharged like any 
other order of the house ; in ^'hich case, the proceeding on the bill 
is. suspended at that stage of its progress, and, if renewed, must be 

1 Comm. Jour. XLIV. 46. 



Chap. X.] instructions to committees on bills. 843 

taken up at that point. A bill may also be transferred, from one 
committee to another, as from a select committee to a committee 
of the whole, or from the latter to the former. Another proceeding, 
which occasionally takes place, is the employment of the commit- 
tee on a bill, in the place of a committee or gentlemen appointed 
to prepare and bring in a bill on a particular subject. This hap- 
pens, when, instead of a distinct bill, it is proposed to insert a cer- 
tain statutory provision in some other bill, which has arrived at 
this stage of its progress. The proper preliminary proceedings in 
the particular case having been gone through with, as, for example, 
a committee of the whole having considered a subject, and come 
to a resolution which is agreed to by the house, the committee on 
a particular bill is then empowered by way of instruction, to make 
provision therein for the subject, in question.^ It is also the com- 
mon practice, when a bill has been committed, to refer petitions 
and other papers relating to the subject of it to the committee, for 
its consideration in connection with the bill. 

2160. The ancient practice of parliament in regard to the second 
reading and commitment of bills, is substantially adopted in the 
lower house of congi-ess, and in many other legislative assemblies 
of this country. In the former, the rule, by which this practice is 
sanctioned, was first adopted in 1794, and is as follows: — " Upon 
the second reading of a bill, the speaker shaU state it as ready for 
commitment or engrossment ; and, if committed, then a question 
shall be, whether to a select or standing committee, or to a commit- 
tee of the whole house ; if to a committee of the whole house, the 
house shall determine on what day, if no motion be made to com- 
mit, the question shall be stated on its engrossment." 



CHAPTER TENTH. 

OF INSTRUCTIONS TO COMMITTEES. 

2161. The most frequent proceeding, after a bill is committed, is 
to instruct the committee. Instructions are of two kinds, enabling 
or mandatory ; ^ the first authorizes the committee to do that, 

1 Comm. Jour. LIT. 214, 608, 624 Same, « Hans. (3), VL 265, 268, 269. 

446, 568, 627; Same, 235, 237. 



844 LEGISLATIVE ASSEMBLIES. [PaET VIII. 

which, otherwise it could not do, in virtue of the reference of the 
bill to it ; the other requires the committee to do the particular 
thing which is the subject of it. Enabling instructions may em- 
brace any subject whatever, within the power of the house to legis- 
late upon, ^vhether relating to the biU referred to the committee or 
not. But, as the introduction of any wholly independent topic of 
legislation in this manner would be in effect to overleap aU the 
proceedings previous to the commitment, that is to say, leave for 
the bill, and the first and second readings, an instruction of this 
sort, though not objectionable in point of form, "would not be likely 
to receive the favor of the house, except under extraordinary cir- 
cumstances.i Enabling instructions, which propose to give the 
committee power to do what they are already authorized to do, are 
wholly unnecessary, and, therefore, objectionable ;2 but it is for the 
house to decide, in each individual case, whether an instruction 
moved is, or is not, of this description.^ 

2162. Mandatory instructions, which command the committee 
to do a particular thing, may relate either to a matter aheady 
within the discretionary power of the committee, or to some new 
and independent subject. Enabling instructions are usually con- 
fined to subjects, which are analogous, or, at all events, not enthely 
foreign to the bill, as, for example, where the biU referred was for 
continuing an act for a lisnited period, the committee was insti-ucted 
also to amend it ; * the form being that it be an instruction to the 
committee, that they have power to make provision in the bill, or 
to receive a clause, for such or such a purpose. Instructions, which 
thus enlarge the powers of a committee, are in general enabling 
merely and not mandatory. The latter form of instruction is 
usually confined to something connected with the proceedings, 
and independent of the subject-matter ; as, that they cannot admit 
counsel to be heard ; ^ or that they hear counsel and examine wit- 
nesses,^ or that they do, in the first place, examine into the authority 
under which a particular person acts as agent in a petition pre- 
sented to the house,"" or that they inquire into the circumstances of 
an agreement between certain parties.^ 

2163. It is by means of an instruction to the committee, that 
the form of a bill is changed, as by making two bills into one, or 



1 Hans. (3), XXXVm. 790, 791, 792, 793. 5 Comm. Jour. XLAI. 170. 

2 Hans. (3), XIV. 959. 8 Comm. Jour. XLYl. 269. 

3 Hans. (3), XXXV. 551, 554, 555, 556. ' Comm. Jour. XL VIE. 635. 
* Comm. Jour. LII. 554. » Comm. Jour. XLIX. 360. 



Chap. XL] of commitment and amendment. 845 

dividing one into two or more.^ Instructions to form two bills into 
one are, in general, mandatory ,2 sometimes enabling merely ; ^ to 
divide one bill into two or more, appear always to be enabling.* 
Li turning one bill into two, or in making two bills into one, the 
committee does not perform the part of a mere scrivener, but reports 
the amendments proper for those purposes, as in other cases.^ 

2164. K there is any rule in the assembly, in which a motion to 
instruct the committee on a bill is made, which precludes a particu- 
lar amendment from being made, or any amendment at the particu- 
lar stage at which the bill has then reached, it is not in order to 
instruct the committee to amend the biJl, or to amend it in that 
particular manner.^ 

2165. Amendments, in pursuance of mandatory instructions, 
stand upon the same footing with other amendments, and must 
be reported upon by the committee, and acted upon by the house 
in the same manner." 

2166. Instructions may be given to a select committee, at any 
time after its appointment ; and to a committee of the whole, at 
any time previous to the motion for the speaker to leave the chair. 



CHAPTER ELEVENTH. 

OF COMMITMENT AND AMENDMENT. 

2167. When a bill has been ordered to be committed to a com- 
mittee of the whole house, the business may be suffered to remain 
as it is, to be resumed on some future occasion, at the pleasure of 
the house ; or the house may immediately resolve into the commit- 
tee ; or the order for commitment may be followed by another, fix- 
ing the time for the sitting of the committee on some future day. 

2168. When the sitting of the committee has been fixed for a 
subsequent day, the first proceeding, in entering upon the business 

1- On the motion for an instruction of this connection with the proceedings and report of 

kind, the merits of the bill are not open for the committee, 

debate. Hans. (3), XXIH. 954, 955. ^ Comm. Jour. LV. 730, 754. 

2 Comm. Jour. XXI. 836, 839, 841; Same, « J. of H. 29th Cong. 2d Sess. 452, 453; 

XXX. 832, 834, 837; Same, LXV. 282. Same, 31st Cong. 1st Sess. 1513, 1514; Cong. 

» Comm. Jour. LVIII. 569. Globe, XX. 161, 584. 

* This subject will be further adverted to in ^ J. of H. 27th Cong. 2d Sess. 725. 

71* 



846 LEGISLATIVE ASSEMBLIES. [PaST VIII. 

on that day, is, for the house, on motion for the purpose, to read the 
order of the day for the house to resolve itself into a committee of 
the whole to consider of the bUl in question. "WTien the order has 
been read, it is then proper to make any motion relative to the sub- 
ject of the order ; and it is at this time, generally, that petitions 
and other papers are referred, and instructions given to the com- 
mittee ; though these proceedings may take place at any time after 
the order for the commitment. At this time, also, it may be moved 
to discharge the order for the commitment. When all the motions 
of this description have been made and disposed of, or, if there are 
none such made, immediately upon the order being read, the proper 
motion is, that the speaker do now leave the chair. 

2169. On this motion, that the speaker do now leave the chair, 
it is sometimes moved to amend, so as to substitute for it an in- 
struction to the committee. But, in general, if any amendment is 
moved, it is for the purpose of appointing some other time for the 
committee, either \sT-thin or beyond the session, in some one of the 
various modes aheady described. In moving an amendment for 
the purpose of postponing the committee, the language of the 
motion must be somewhat different from what it usually is in the 
analogous motions. The motion usually made is, to leave out the 
word noii\ and to add, this day six months, or whatever other time 
may be selected. If this form ^^ere adopted with reference to the 
motion for the speaker to leave the chah, the absurdit}^ might arise 
of ordering INIr. Speaker " to leave the chair this day six months." 
Hence, the form of amendment, which is adopted, is, to leave out 
all the words after " that," in order to add, " this house vvtII, on this 
day three months," or whatever other time may be fixed, " resolve 
itself into a committee, etc." ^ K the house agrees to the motion 
for the speaker to leave the chah, the committee is constituted in 
the usual manner. 

2170. The principle of the bill being supposed to be affirmed 
and sanctioned by the previous proceedings, especially the second 
reading, at least, so far as that the house may be supposed to be 
■polling to see the bill in the best form in which it can be put, the 
purpose of the commitment is, that the details of the biU. may be 
examined and amended, if need be, in such a manner as to carry 
out the principle, and to effect the object of the bill. This being 
the pm-pose of the commitment, the authority of the committee, as 
derived from its appointment, is limited and restricted to the term^ 

1 May, 355. 



Chap. XL] commitment of bill. 847 

and jjrovisions or rather the title of the bill ; having no power to 
decide upon its merits, nor to introduce into it any provision which 
does not come fairly within the title. If any thing beyond this is 
desired by the house, it should be the subject of an instruction. 

2171. This being the earliest stage of a bill, in which amend- 
ments are allowable, it is necessary now to explain what is meant 
by amendments, and in what manner they are effected. The term 
amendment, in its broadest sense, signifies every alteration or ad- 
dition made to a biU or other proposition, after its introduction into 
the house, in which it first passes, as well as every addition or alter- 
ation which is made, or rather proposed, in one house to a bill 
passed by the other.^ But, in a narrower sense, the word amend- 
ment is used in parliamentary practice to denote only one form of 
these alterations ; the others being known as additions and provisos. 
These different significations will now be explained. 

2172. I. Amendment. A bill, as has already been observed, con- 
sists of one or more propositions, in which the will of the law- 
making power is declared, in reference to a particular subject ; each 
of which propositions, or clauses, as they are called, is introduced 
by words of enactment. "When the language of which one of 
these clauses is composed, is changed, either by leaving out, insert- 
ing, or adding, certain words, or by leaving out certain words and 
inserting or adding others, these various alterations are denominated 
amendments. Where words are added or inserted, constituting of 
themselves a paragraph or sentence, which may be read indepen- 
dently of the clause, to which it is appended, such paragraph or 
sentence will, nevertheless, be an amendment, provided it relates to 
the clause in such a manner, as, when added, to make a part of it. 
Consequently, a qualifying paragraph or proviso, which is added to 
or inserted in a clause, and which refers only to the clause, to w^hich 
it is thus appended, may be added as an amendment. 

2173. II. Addition. When the change or alteration of a bill 
consists of the addition of an entire clause, containing enacting 
words, or of the addition of several such clauses, the amendment is 
denominated an addition, or more properly, a schedule of additions, 
" for that which containeth an addition is called a schedule." ^ 



1 The term amendment is sometimes used in bill be read the second time, a motion is made 

■what may be called the colloquial language of to adjourn the house, or to adjourn the debate, 

parliament, to denote a secondary motion, this latter motion is sometimes called an 

moved upon and taking precedence, for the amendment, 
time being, of a principal motion; as if on a ^ Hackwill, 162. 
motion pending and under discussion that a 



848 LEGISLATIVE ASSEMBLIES. [PaRT VIIL 

2174. III. Proviso. Where the purpose of an independent ad- 
dition is to qualify the general provisions of the bill, or to with- 
drav' from its operation certain persons, things, or circumstances; 
\\"hich would or might otherwise come vathin its provisions, it is 
denominated a proviso. This kind of addition derives its name 
from the vi'ords with "s^'hich it is introduced, as provided, provided 
further, provided always, etc. It generally contains enacting vrords, 
as. Provided always, and he it further enacted; but these are some- 
times omitted, according to the nature of the subject. 

2175. The several steps taken in committee, as well as in the 
house, are, in strictness required to be the subject of motions regu- 
larly made and seconded by the members of the committee. But, 
in practice, the formal proceedings are usually suggested by the 
chairman, and motions are not seconded at all. 

2176. The first motion, in the regular course of proceeding, 
which, however, is suggested by the chairman, on taking the chair, 
is, that the bill be read a first time ; which being agreed to, and 
the bill read accordingly (which is done by the assistant clerk of 
the house, who acts as clerk of the committee) the next step in 
regular course is, that the bill be read a second time, paragraph 
by paragraph. K this motion is affirmed, the bill is then to be 
read in that maimer. 

2177. The ffirst or introductory paragraph, namely, the preamble, 
is the first in order to be considered ; but, as in public biUs, the 
preamble is intended to be a summary of the reasons which induce 
the legislature to pass the bill, and which, consequently, cannot be 
truly or adequately set forth, until the pro^asions of the bill are 
settled ; it is usual to postpone the second reading and considera- 
tion of the preamble, until the clauses of the bill have been gone 
through with. 

2178. The preamble being postponed, the chairman proceeds to 
call out the clauses, each by itself, ia the order in which they stand 
arranged, together with the short marginal note, if there be any, 
attached to and explanatory of the contents of each. A clause 
may also be postponed, if necessary, as well as the preamble, either 
generally, that is, until after aU the others have been considered, or 
until after some other clause has been considered,^ provided it be 
done before the clause has been amended ; but, where the preamble 
ftnd also a clause or clauses are postponed, the latter are to be first 

1 Comm. Jour. LXXX\1. 143. 



Chap. XL] commitment of bill. 849 

considered, in the order in which they stand postponed, and after- 
wards the preamble.! ' 

2179. If no amendment is offered to any part of a clause, the 
chairman puts a question, either of himself, or on motion, " that 
this clause stand part of the bill ; " which being decided, either in 
the affirmative or negative, the chairman proceeds to the next clause. 
When an amendment is proposed, the chairman states the line in 
which the alteration is to be made, and puts the question in the 
ordinary form. The subject of amendments, having been abeady 
considered at length, need not be particularly adverted to in this 
place. 

2180. As it is a rule in amendments, that a precedent clause or 
line cannot be amended after a subsequent clause or line has been 
amended, — that is, that amendments must be made in the order of 
the clauses and lines, — members who have amendments to pro- 
pose in committee must carefully attend to the progress of the bill, 
and move their amendments at the proper time, or otherwise they 
win be precluded from moving them altogether. If an amendment 
is already moved to the latter part of the clause, when it is desired 
to propose one in an earlier part of the same clause, the course is 
to have the pending motion withdrawn, in order to give an oppor- 
tunity for moving the amendment in question. When the latter is 
disposed of, the former may be again moved.^ 

2181. When a clause has been amended, the proper question to 
be put is, " that this clause as amended stand part of the biU." 
When the clauses have thus been gone through with, in regular 
course, the postponed clauses are to be p^-oceeded with, in like 
manner, in their order, — then any additional matters referred to 
the committee by way of instruction, — and, lastly, additional 
clauses moved in the committee." ^ 

2182. The schedules may be considered in connection with 'the 
clauses to which they refer, if they refer to particular clauses, or 
they may be considered in the order in "which they stand, and 
treated as clauses, after the clauses have been gone through with. 
Postponed clauses, (that is, those which are postponed generally) 
may, if necessary, be taken up before other clauses have been con- 
sidered.* When all the clauses and schedules have been considered, 
and all the amendments made, which the committee see fit, or is 



1 Comm. Jour. LXXXVm. 366, 372, 378, ' Coram. Jour. LXXXVII. 99, 101. 
382, 405. 4 Comm. Jour. LXXXVIL 126, 160. 

3 Comir. Jour. XL VI. 176. 



850 LEGISLATIVE ASSEMBLIES. [PaRT VIIL 

authorized by instruction to make, the preamble which had been 
postponed is considered, and, if necessary, amended, so as to con- 
form to amendments made in the bill ; and the chanman then puts 
the question, " that this be the preamble of the bill," which he 
thereupon reads to the committee. 

2183. Blanks left in a bill are filled up m the order in which they 
ocaur. The mode of filhng them is different from the ordinary 
mode of amendment. Every member, ^vho has a proposition to 
offer for filling a blank, makes his proposal accordingly ; and, when 
all the different propositions are before the committee, they are put 
to' the question, in the order in which they are made, until one of 
them is adopted. 

2184. This order admits of an exception, in regard to sums and 
times. K a blank is to be fiUed with a sum, and several sums are 
proposed, the lowest is to be first put to the question, the next 
lowest afterwards, and so on until a sum is agreed upon. If the 
blank is to be filled with a time, and several are named, the 
furthest off is to be put first to the question, the next furthest after- 
wards, and so on until one is adopted. This rule applies not only 
where blanks are left, but also where they are made or supposed, 
that is, to the insertion or addition of sums or times in the usual 
form of amendments ; as, for example, where it was proposed to 
amend a clause by the insertion of a proviso, that not more than a 
specified sum should be expended in virtue of its provisions.^ But, 
where times and sums are already inserted in a bill, amendments 
are moved and made in the usual manner. 

2185. Every description of amendment may be made by the 
committee ; clauses and schedules may be added or omitted, or sub- 
stituted one for another, or divided into two or more, or united 
together; paragraphs may be added or omitted, or left out and 
others inserted ; and verbal alterations may be made in every part 
of the bill, whether the preamble, the clauses, or the schedules.^ 
The only limit to the power of the committee, as to amendments, 

1 Comm. Jour. LXXXIV. 339. referred to it, which consisted of but a single 

2 In the house of representatives in the con- section, refused to receive the report, on the 
gress of the United States, committees of the ground, that a committee of the whole had 
•whole sometimes avail themselves of the form no right to destroy a bill. J. of H. IV. 444. 
of an amendment to express an opinion hos- In the same body, it is now the common prac- 
tile to the bill referred to them, as where they tice for committees of the whole, besides re- 
recommend to amend a bill by striking out the porting on a bill, to recommend that it do or 
enacting clause, or the most important sec- do not pass. All reports of this kind, though 
tions ; yet Mr. Speaker Cheves, on one occa- generally sanctioned by the house, are irregu- 
sion, in 1814, where a committee of the whole lar and unauthorized. 

reconunended to strike out the entire bill 



Chap. XL] commitment of bill. 851 

IS, that they must be within the title of the bill, or within the special 
powers conferred upon the committee by instructions from the 
house. In the house of commons, the title of the bill, which is 
itself a specification of the authority of the committee, is not within 
the power of the committee to amend ; but is reserved for the house 
after all the amendments have been made to the bill in all its 
stages. 

2186. When the committee, in pm-suance of instructions, unites 
two bills into one, the title of the new bill is composed of the titles 
of the two put together ; when one biU is divided into two, that 
part of the title, which belongs to the subject of each, is appropri- 
ated to it ; the committee not being authorized in these, any more 
than in other cases, to change the title. 

2187. When it is proposed to add a clause to the biU, four ques- 
tions are necessary, namely : that the clause be brought up ; ^ that 
it be read a first time ; that it be read a second time ; ^ and that it 
be added to the biU. When a proposed clause has been brought 
up and read,-^ it is then open to amendment, in the same manner, as 
if it had been a part of the bill originally. The last question is, 
that the clause, or the clause as amended, be added to the bill. 

2188. If it is desired to take the sense of the committee on 
retaining an entire clause, before proceeding to amend it, — the 
ordinary course being first to go through the clause and amend it, 
and then to put a question whether it shall stand part of the bill, — 
this may be effected by moving to leave out the entire clause, and 
putting the question as on an amendment to leave out the enacting 
and two or three of the introductory words of the clause. K the 
words are left out, the clause is as effectually negatived, as it would 
be, on the question that it stand part of the bill ; if they are retained, 
the committee may then proceed to amend the residue of the 
clause."^ 

2189. When it is desired to substitute a new clause for one in 
the bill, the course is, to move to leave out all after the enacting 
words of the original clause, for the purpose of inserting the words 
of the new one.^ 

2190. If an amendment is moved, which is objected to, as not 
being within the title, the title is first read and the chairman there- 
upon states his opinion, whether the objection is or is not well 

i Coram. Jour. XXXVIL 422. * Comm. Jour. LXXXVIL 544. 

» Comm. Jour. XXXVL 831. « Comm. Journal, LXXXV. 619; Same 

• Comm. Jour. LXXXIX. 521, 548. LXXXVI. 808. 



852 LEGISLATIYE ASSEMBLIES. [PaET VIIL 

founded ; and, if his opinion is not acquiesced in, a motion may be 
made and the question put, to take the sense of the committee on 
the point. The question is to be put in the form in which the 
chairman's opinion is expressed ; thus if his opinion is that the 
amendment is not within the title, the question is put that it is not 
"v^ithin the title. These proceedings supersede, for the time being, 
the motion to amend, and dispose of it, if the sense of the commit- 
tee is, that it is not within the title.^ 

2191. According to the practice in this country the chairman of 
a committee of the whole, like the speaker in the house, decides all 
questions of order, in the first instance, subject of course, to an 
appeal to the committee. 

2192. The committee on a bill having no other authority, in 
point of form, but to amend it, or to approve of it as it stands, their 
report always is, that they have gone through with the bill, and 
have made some amendments thereto, or that they report it "^"ith- 
out amendment ; and this is the form of the report, though various 
other matters have been referred to the committee by way of in- 
struction, to be considered in connection with the biU. K they 
have been authorized, in their discretion, to receive a clause, or to 
make provision in the bUl, for a particular pm-pose, and have seen 
fit to do so, the execution of the authority appears in the form of 
an amendment. If they do not see fit to exercise it, they make no 
report on the subject. K a committee is authorized or directed, by 
way of instruction, to hear counsel, to turn one bill into t^^o,- or 
tvv^o bills into one, or to do any other act of a similar nature, they 
inform the house, in their report, that they have complied with such 
instructions. 

2193. If the committee should be unable to go through the bill 
at one sitting, the course is to report progress, and ask leave to sit 
again. When the bill has been fully considered in the committee 
and all the amendments made, which the committee think proper 
to make, a motion is made and the question put, that the chair- 
man report the biU, or the biU A^-ith the amendments, to the house ; 
which being agreed to, the chauman leaves the chair of the com- 
mittee, and the speaker resumes that of the house. The chaii-man 
then approaches the steps of the speaker's chair, and reports, or 
rather informs the house of the proceedings of the committee. 
iUtliough the committee on a bill is not authorized to decide upon 
its merits, yet if the opinion of the committee is against the bill, it 

1 Comm. Jour. LXXXVII. 560. 561. ' J. of H. 24th Con^. 1st Sess. 1051 



Chap. XL] commitment of bill. 853 

it is not unusual to report against it indirectly, by rising without 
making any report. "When this mode of proceeding is adopted, 
the progress of the bill is as effectually arrested, until the commit- 
tee is revived by the order of the house, as if a negative had been 
put upon any of the motions for forwarding the bill in its regular 
course. 

2194. When a bill is reported with amendments, the chairman 
informs the house, that the committee has gone through the bill, 
and has made an amendment, or several amendments, thereunto, 
which they have directed him to report, when the house will please 
to receive the same. The next proceeding is for the house to fix 
upon a time for receiving the report ; which may be done either 
at that time, or afterwards. If the house proceeds then, or whenever 
it proceeds, to fix upon a time for receiving the report, it may be 
moved, either that the report be now received, or that it be received 
on some future day ; which motions may be proceeded with and 
amended, in the manner already described.^ In the house of lords, 
there is a standing order that no report shall be received from a com- 
mittee of the whole on the same day the committee goes through 
the bill, when any amendments are made by the committee.^ 

2195. If no amendments have been made by the committee, the 
chairman informs the house, that the committee has gone through 
the bill, and has directed him to report the same without amend- 
ment ; but he does not add, as he does where amendments have 
been made, that he is directed to make the report, when the house 
will please to receive the same ; and, if no objection is made, he 
makes the report immediately. K objection is made, or there is 
any good reason for deferring the report, a time may be fixed for 
receiving it, as in other cases ; thus, when the chairman informed 
the house, that, in pursuance of the instruction of the house, the 
committee had turned the bill into t"v\^o bills, but had made no 
other amendment therein, than was necessary for that purpose, the 
house directed the report to be made on a future day.^ 

2196. When a committee has been authorized or directed by an 
instruction from the house, to divide a bill into two or more, the 
chairman informs the house, that the committee, pursuant to the 
power given them, have divided the bill accordingly ; and he then 
reports upon each of the bills separately.^ So, where two bills 

1 Comm. Jour. XL VII. 817; Same, XLIX. ^ Comm. Jour. LV. 730, 754. 
611. * Comm. Jour. LII. 90, 97. 

» Mav, 360. 

72 



854 LEGISLATIVE ASSEMBLIES. [PaRT VIII. 

have been referred to the same eonunittee, with an instruction to 
make them into one, which has been done, the chairman informs 
the house, that the committee, pursuant to the power or instruction 
given them, has united the two bills into one, which is reported 
accordingly in the usual manner.^ 

2197. In going through and amending a bill, and this is even 
the case with amendments made in pursuance of mandatory instruc- 
tions, a committee does not insert the amendments, which it agrees 
upon, in the' bill itself, not even such formal amendments as become 
necessary in consequence of the making of two bills into one, or 
dividing one into tv;^o or more,^ nor when they are for the purpose 
of filling a blank.-^ The amendments are aU set dowm in a paper 
by themselves, containing references to the line, words, etc. where 
the amendments are to be inserted or added, and so reported to the 
house."^ The amendments of the committee, whether consisting of 
amendments properly so called, or of additions and provisos, are aU 
to be set down in the schedule of amendments, in the order in 
which they occur in the biH, without regard to the order in which 
they are made. 

2198. The proceedings in a select committee are substantially 
the same as in a committee of the whole ; dilfering only so far as 
results from the different constitution of the two sorts of commit- 
tees. 

1 Comm. Jonr. XXX. 832, 834, 837. striking ont one of the sections, that section, 

2 Comm. Jour. LV. 730, 754. being first variously amended, is then ordered 
8 Comm. Jour. XL\T[. 578. to be stmck out on the proposition originally 
* This principle, in connection with the submitted. The amendments first adopted 

rule relating to amendments, that the friends are not inserted in the bill, and do not appear 

of a paragi-aph, which it is proposed to strike in the report of the committee, which only 

out, have a right .to submit amendments to it, recommends that the section be struck out. 

with a view to making it as perfect as possi- If the latter is rejected bv the house, the sec- 

ble, before the question is taken on striking tion as unamended stands on the report of the 

out, sometimes leads to much inconvenience committee ; and thus the amendments made 

and embarrassment. On a proposition in a in committee to the section in question, do 

committee of the whole, to amend a bill by not appear at all. Cong. Globe, XXTTT. 166. 



Chap. XIL] report on bill. 855 

CHAPTER TWELFTH. 

OF THE REPORT OF THE COMMITTEE, AND PROCEEDINGS THEREON. 

2199. When a day has been appointed for receiving the report, 
the first proceeding is the reading on that day of the order of the 
day for receiving the report. A motion then follows, that the report 
be now received, or that it be received at some future time,^ on 
which motions amendments may be moved as already stated. 
When the report is to be received, whether immediately on the 
house being resumed, or on a subsequent day appointed for the 
purpose, the chairman, reading the report in his place, reports the 
amendments which the committee have made to the bill, and which 
they have directed to be reported to the house. He then appears 
with the bill and report at the bar, and, on being called upon by the 
speaker,^ states that he has a report, and thereupon moves that it be 
now brought up.-^ On this motion, an amendment may be moved 
to leave out now., and insert some other time."* If the motion to 
bring up the report is decided in the affirmative, the chairman de- 
livers in the bill with the amendments at the clerk's table. If there 
are no amendments, the chairman' goes through with the same cere- 
mony, except that no question is made on bringing up the report, 
and the bill is at once delivered in at the clerk's table.° 

2200. When a biU is reported without amendment, and is there- 
upon delivered in at the clerk's table, no further proceeding takes 
place upon it, strictly speaking, as a report ; the next step is the 
engrossment and the third reading, if the biU is pending in the 
house in which it originated, or the third reading merely, if it has 
passed in the other house, and is consequently already engrossed. 
The proceedings on the report of the committee, therefore, relate 
only to bills which are reported with amendments. 

2201. The report having been brought up, the next step in the 
regular course of proceedings is, that a motion is to be made, and 
a question put, that the report be now read ; which being agreed to, 
and the report read, or supposed to be read,*^ the next step is a 
motion, that the report, that is, the amendments, be read a second 
time, one by one. If this motion is decided in the affirmative, the 

J Comm. Jour. XXXVII. 736. * Lords' Jour. LXV. 531. 

2 May, 282. » May, 282, (1st ed.). 

» Comm. Jour. XXXVU. 852. « May, 282, (1st ed.). 



856 LEGISLATIVE ASSEMBLIES. [PaRT VITL 

amendments of the committee are then read a second time, sep- 
arately, in course/ and a motion made, and a question put on each, 
that it be agreed to. The amendments reported by the committee 
may also be amended; which, of course, must take place before 
they are agreed to. When the amendments of the committee have 
been considered, it is then in order to offer new clauses to be added 
to the bill ; after which, amendments may be made to other parts 
of the bill. The proceedings now being in the house, there is no 
restriction upon the clauses and amendments that may be offered, 
as there is in the committee, that they must be within the title. 

2202. When a member offers a clause on the report, that is, after 
the report has been considered, four motions are necessary, namely, 
that the clause be brought up ; that it be read a first time ; that it 
be read a second time ; and, that it be made part of the bill. 
Clauses thus offered may be amended, in the same manner, as if 
reported by the committee. The last motion, in that case, is, that 
the clause, as amended, be made part of the biU. If any new 
clauses are proposed, containing provisions, which, by the rules of 
the house, are first to be considered in a committee of the whole, — 
as, for example, which contain rates, penalties, etc., — the course 
of proceedings is, for the house immediately to resolve itself into 
the committee, for the pmpose of considering them, and to agree 
to them on the report. Clauses should be offered by way of amend- 
ment, before any amendments are made to the bill; because the 
addition of a new clause may render it necessary to introduce 
am mdments in other parts of the bill ; and all the clauses should 
therefore be under consideration before amendments are admitted.^ 

2203. Whatever other matters may be especially referred to the 
committee, w^hether of the whole house or select, or which it may 
undertake to report, the report upon the bill is always the same, 
namely, with or without amendment. If the bill has akeady been 
in the hands of a committee, either select or of the \\^hole, which 
has reported it \\T-th amendments, the report, with such amendments 
of its own as it pleases, is, that the committee agrees or disagrees 
with the amendments of the first committee, or that the committee 
agrees to the same wdth amendments. K the biU, in the judgment 
■of the committee, ought or ought not to pass, the committee some- 
times reports a recommendation that the bill pass, or that it be 
rejected. In this case, the committee's report may or may not, 
according to its nature, require the action of the house to agi-ee to 

1 Comm. Jour. LIX. 163, 347. a jjay, 364. 



Chap. XII.] eeport on bill. 857 

it ; but it does not stand, or obstruct the progress of the biU, which 
goes on notwithstanding, and upon which it has merely the effect 
of so much said in argument. Sometimes the committee, finding 
the amendments necessary to be adopted, very numerous, and 
merely formal, or for other good causes, reports the same bill in a 
new draft, embodying all the amendments, and denominated an 
amendatory bill. This kind of biU is received as the report of the 
committee, instead of the bill referred to it, and passes through all 
the regular stages of a bill originating in any other manner. 

2204. When a report has been brought up and read, the further 
consideration of it may be deferred to a future time, and so from 
time to time, as may be convenient, either before or after it has 
been in part considered, until the consideration of it has been com- 
pleted. When a report is thus deferred, it becomes an order of the 
day for the day assigned ; and the proceedings upon it, on that 
day, are similar to what take place on the report, when it is taken 
into consideration, and gone through with on being made. 

2205. When a biU has been reported with amendments, and the 
consideration thereof deferred, it is customary to have the bill re- 
printed in the mean time ; the practice of both houses being to rely 
more upon a reprint of the biU, for a knowledge of the amend- 
ments, than upon any proceedings in the house.^ 

2206. It is a frequent and usual proceeding, after a bill has been 
committed and reported, to reconsider it again in committee; for 
which purpose it is necessary that the bill should be recommitted. 
A recommitment may be either to the same committee, if the orig- 
inal committee was a select one, or to a different committee, or to 
a committee of the whole house ; and, if the committee was orig- 
inally of the whole house, the recommitment may be either to a 
committee of the whole, or to a select committee. 

2207. The motions for recommitment are precisely the same as 
for commitment. This proceeding may take place as often as the 
house thinks fit ; and, it is not uncommon for bills to be reconsid- 
ered in committee several times, in consequence of repeated recom- 
mitments.^ A recommitment may take place at any stage of the 
proceedings, after the report of the committee has been brought up, 
and before a subsequent stage has been taken ; but, if a biU has 
been merely ordered to a third reading, and has not yet been read 
the third time, it may, notwithstanding, be recommitted, the ordei 
for the third reading being first discharged for the purpose.^ 

1 May, 360. s Comm. Jour. LXXXVIL 303. 

a Mfiy, 361. 

72* 



853 LEGISLATIVE ASSEilBLIES. [PaUT Vlll. 

2208. The proceedings in the committee, on a recommitment, 
depend upon the manner in w"hich the recommitment takes place. 
K the recommitment is general, that is, without limitation or 
restriction, the entire bUl is again to be considered in the commit- 
tee. If the recommitment is special, that is, as to certain amend- 
ments proposed, or clauses offered on the report, or with instructions 
to make some particular or additional provision, the proceedings in 
the committee must be confined to the special purpose of the re- 
commitment. If the bin has been akeady in the hands of a com- 
mittee, and reported upon by it, with amendments, which have not 
yet been adopted by the house, the new committee, w"hatever amend- 
ments of its own it may report, reports its agreement or disagree- 
ment, with the amendments of the first committee, or its agreement 
thereto with amendments. The proceedings, in making the report, 
and on the report, are similar to those aheady described. 



CHAPTER THIRTEENTH. 

or THE EXGROSS^klEXTi AXD THIRD READING. 

2209. "\"\Tien the proceedings on the report of the cormuittee 
have been brought to a close, in the manner already described, and 
also when a bill has been reported ^dthout amendment, and deliv- 
ered m at the clerk's table, the next step in the proceedings is the 
engrossment of the biU, preparatory to a third reading, if the bill is 
pending in the house in which it originated, or the third reading, if 
the bill has already passed in the other house.- 

2210. The motion, that the bill, or the bill Tvith the amendments, 
as the case may be, be engrossed, may be made immediately upon 
the conclusion of the proceedings on the report, or afterwards, as 
may be convenient. On this motion the merits of the bill may be 
discussed ; and, if it is negatived, the bill is lost ; if decided in the 
affirmative, it may be followed up by a motion for the third read- 

1 The engrossment, though discontinued in practised in parHament before 1849. May, 

both houses of the British parliament, since 362, 363, 

the vear 1849, is one of the regular incidents - The engrossment and third reading consti- 

ofparhamentary proceedings, and still prevails tute, ordinarily, but a single question. Cong, 

so generally in other legislative assemblies, Globe, XIII. 414. 
that it is described in this chapter as it was 



Chap. XIIL] engrossment of bill. 859 

ing of the bill, on a particular day, or on a particular day, if then 
engrossed ; and on this motion the merits of the bill may in like 
manner be again discussed. 

2211. The bill, as it has thus far been the subject of proceeding, 
and the amendments of every kind, which have been made to it, 
have been written on paper. Having undergone all the changes of 
form, which are likely to be proposed and adopted, the bill is now 
to be rewritten on a more permanent material, and in the form of a 
clean draft, containing all the amendments in their proper places. 
This is effected by the engrossment, " which is no more than to 
transcribe the bill fairly out of the paper, in which it was written, 
into parchment." ^ The several pieces of parchment, where there 
is more than one, on which a bill is written, are denominated skins,^ 
or presses ; ^ and, in the future proceedings on the bill, these terms 
serve to designate the different parts of it, for the purpose of mak- 
ing and describing amendments. 

2212. The style of writing, in which bills are engrossed, is the 
old-fashioned black-letter, which is still kept up, in preference to 
the adoption of the common plain round hand, on the ground, 
that the object in view is rather to preserve an uniform, durable, 
and correct record of the acts of the legislature, which shall be legi- 
ble at a distant period, with ordinary care, than merely to afford 
facility for reading the record expeditiously ; that the present mode 
of engrossment gives a permanence and an uniformity, which can- 
not be obtained by the ordinary mode of writing ; and that the 
adoption of the plain round hand would afford a greater facility for 
falsifying, by interpolation, or otherwise, than the use of the en- 
grossing hand.* The several clauses and parts of the biU are writ- 
ten close, without any space left between them, and only on one 
side of the skin. 



1 D'Ewes, 18. reasons above mentioned. Comm. Jour. XCL 

2 Comm. Jour. X. 143. 447. In this country, bills are engrossed in 

3 Comm. Jour. X. 178. At the time when tlie common plain round hand, or in such 
engrossing was first practised, parchment was other equally plain, as the writer pleases to 
selected, because it was the only ordinary adopt. Whether the punctuation ought to be 
writing material of a permanent character, considered as making part of the bill, must 
At the present day, in congress, and others depend entirely upon the intention of the 
of our legislative assemblies, bills are en- draftsman, of which there can generally be 
grossed on thick and strong paper. In con- little or no doubt. At any rate, before each 
gress they are afterwards enrolled on parch- article is published authoritatively, the punc- 
ment. tuation ought to be revised. Particular direc- 

* In 1836, the commons proposed to discon- tions may be given to the clerk as to engross- 

tinue the mode of engrossing in black-letter, ing, as, for example, in regard to numbering 

and to substitute therefor a plain round hand, or lettering the schedules. J. of H. 29th 

The lords disagi-eed to the proposition, for the Cong. 1st Sess. 1029. 



860 LEGISLATIVE ASSEMBLIES. [PaRT VIII. 

2213. In both houses, it is a branch of the general duties of the 
clerk to see that the bills are properly engrossed.^ But this duty, 
which was anciently performed by the clerk himself, or his servants 
out of the house, is in modern times executed by officers specially 
appointed for the purpose. In the house of lords, the engrossment 
is confided to an officer, denominated the clerk of the engrossments. 
In the commons, in which much the greater number of the bills 
originate, the engrossing is executed in the engrossing office, and 
examined in what is called the public bill office, the officers of 
which are immediately responsible for the correctness with which it 
is done.- 

2214. The order for the engrossment of a bill is sometimes in 
the simple form, that the bill be engrossed ; sometimes it is accom- 
panied by an order for the third reading ; sometimes for the third 
reading on a particular day ; or on a particular day, if the bill 
should then be engrossed. K no order is made, as to the time for 
the thnd reading, it may take place as soon as the bill is engrossed ; 
if the time has been fixed, the third reading is an order of the day 
for the day so agreed upon, and to be proceeded with accord- 
ingly. 

2215. The next step to be taken after the engrossment, or after 
the report, or proceedings on the report, of a bUl abeady engrossed, 
is the thu'd reading. K a bill from the other house is reported from 
the committee without amendment, — being already engrossed, — 
it may be read a third time immediately, or it may be ordered to 
be read a third time, without any time being fixed therefor, or the 
time may be fitted for a future day.^ If a bUl from the other house 
is reported from the committee with amendments, the same proceed- 
ings may take place upon it with reference to a third reading, at the 
termination of the proceedings upon the report. But, in the latter 
case, it is most usual to take another day for the third reading. 

2216. In the case of a biU originating in the house in which it is 
pending, the time for the third reading may be fixed as already 
remarked, at the time it is ordered to be engrossed, or the house 
may wait until after the biU is engrossed, and then proceed to read 
it a third time, at once, without previously fixing any time therefor ; 
or a time may be fixed for the purpose. In the house of represent- 
atives of the United States, it appears to be the custom to engross 
bills in advance of their being ordered to be engrossed : and if a bill 

1 Hackwell, 150 bill has been anticipated. J. of S. I. 408; J. 

' May, 285, 1st ed. of H. TIL 169. But this is contrary to the gen- 

8 The time fixed for the third reading of a eral nile. Ante, § 



Chap. XIIL] engrossment of bill. 861 

happens to be thus engrossed, it may be read a third time imme- 
diately ; otherwise this motion, except in the case of a bill from the 
other branch, which is already engrossed, is not in order ;i nor, 
without a suspension of the rules can an unengrossed biU be read 
a third time.^ 

2217. When a time has been previously fixed for the third 
reading, the third reading becomes an order of the day for the day 
appointed, and is proceeded with accordingly. On reading the 
order, a motion may be made that the bill be now read the third 
time, upon which amendments may be moved with a view to post- 
pone the third reading to a day within or beyond the session ; or a 
motion may be made, that the bill be read the third time on a future 
day named, on which amendments may be moved, for the purpose 
of fixing upon a different day or for the purpose of presently read- 
ing the bill the third time. 

2218. When the house has determined, that the bill shall now be 
read the third time, it is then forthwith read by the clerk, with the 
ceremonies and in the manner already mentioned with reference to 
the first and second readings. If the biU has come from the other 
house, and has been amended, it is to be read and considered as 
amended ; because that is the form in which it has received the 
approbation of the house in which it is then pending ; although the 
amendments are not embodied in the bill, as in the case of a bill 
originating in that house, but are in a separate and distinct form. 

2219. When a bill has been thus read, it is still in order, though 
the most appropriate stage for amendments is passed, to propose 
amendments to any part of it, in the same manner as in committee, 
or upon the report, observing the same order of proceeding. If the 
bill is of the house in which it is then pending, the amendments 
must be inserted in the engrossment ; if, of the other house, they 
are to be inserted in a schedule by themselves in paper, or added to 
the schedule of amendments already made. Amendments by 
inserting or adding, or by leaving out words, or by leaving out and 
inserting, are made m the same manner after the third reading, as 
in committee. 

2220. In regard to clauses, that is, independent propositions, 
containing enacting words, whether direct or in the form of pro- 
visos, and whether reported as such by the committee on the bill, 
or moved by an individual member, the proceedings are analogous 



1 J. of H. 30th Cong. 1st Sess. 934; Same, * J. of H. 30th Cong. 1st Sess. 1209. 
32d Cong. 1st Sess. 302, 1036. 



862 LEGISLATIVE ASSEMBLIES. [PaRT VIIL 

to the proceedings on a bill. A clause being offered, the first 
motion thereupon is, that it be brought up or received ; if this is 
agreed to, the clause is read, and then follows a motion for the 
second reading ; if the second reading is ordered, the clause is read 
a second time accordingly ; it is then ordered to be engrossed and 
read a thu'd time, on motion, in the same manner ; and, lastly, a 
motion must be made and the question put, when it has been read 
the third time, that it be made part of the bill by way of rider.^ 

2221. K a clause thus offered contains blanks which require to 
be considered in a committee of the whole, it is to be committed 
accordingly, after the second reading ; to be considered in com- 
mittee and reported ; the report received and considered ; the 
amendment made by fiUing the blank on the report of the commit- 
tee ; and then the clause read a third time. K any amendment is 
necessary to be made to a clause, other than such as must fijst be 
reported upon by a committee of the whole, the proper time to 
make it is after the second reading, or on the report of the clause if 
it is committed, and before the third reading.^ 

2222. Clauses, offered as above mentioned by way of amend- 
ment to a bill after the third reading, must be abeady engrossed. 
If adopted, and ordered to be made part of the bill as riders, they 
are filed, that is, tied, to the bill, in the same manner that the differ- 
ent presses or skins are attached to one another, whether the bill 
originated in the house in which it is then pending or in the other. 

2223. When clauses are to be proposed, whether on the report 
of the committee, or on the third reading, they are to be offered 
before any amendments are made to the bill ; for the reason, that 
the addition of a new clause may render it necessary to introduce 
amendments in other parts of the bill ; and, consequently, all the 
clauses which are to be added should be brought forward before 
amendments are made.^ 

2224. Amendments of a bUl originating in the house in wliich 
it is pending, adopted on the third reading, are all to be made at 
the table. Amendments, properly so called, are -UTitten in, or in- 
terlined, or struck out of the engrossment, and clauses omitted are 
cut out, and clauses added are fUed to the bill, by the clerk or other 
proper officer, at the table. Amendments of a bill originating in 

1 See J. of H. IX. 228, 367. It is now pro- 2 Comm. Jour. XXXVI. 192; Same, 

vided, in the house of representatives in con- XXXVIII. lOOi; Same, XXXIX. 458. 503. 

gress by a rule, that " No amendment by way 1038 ; Same, LI. 764. 

of rider shall be received to any bill on its ^ ^Jay, 364. 
third reading." 



Chap. XIIL] engrossment of bill. 863 

the other house are to be set down in a paper thereto annexed, ex- 
pressing in what line, and between what words, the amendments 
are to be made, which is to be returned to that house with the bill.^ 
Clauses and provisos are filed to the bill, in the manner already 
mentioned. 

2225. If, in consequence of amendments or other proceedings, 
on or after the engrossmeni and third reading of a bill, it becomes 
necessary or advisable, the house may order it to be re engrossed. 

2226. After a bill has been ordered to be read a third time, or 
has been read a third time, it is then too late to recommit it gen- 
erally,'-^ but it may then, nevertheless, be recommitted for some 
special purpose, as to receive some particular clause or proviso,^ or 
for the purpose of being divided into two bills.* When a bill, after 
being thus recommitted is reported to the house and again taken 
up for consideration, it is resumed at the point at which the pro- 
ceedings upon it were interrupted by the recommitment. 

2227. The ancient practice of engrossing bills on parchment, 
which had previously prevailed time out of mind in parliament, was 
discontinued in 1849, in virtue of the following standing orders which 
were then adopted in both houses : " That in lieu of being engrossed, 
every bill shall be printed fair immediately after it shall have been 
passed in the house in v^hich it originated, and that such fair printed 
bill shall be sent to the other house, as the bill so passed, and shall 
be dealt with by that house, and its officers, in the same manner in 
which engrossed bills are now dealt with : That when such bill 
shall have passed both houses of parliament, it shall be fair printed 
by the queen's printer, who shall furnish a fair print thereof on 
vellum to the house of lords, before the royal assent, and likewise a 
duplicate of such fair print, also on vellum : That one of such fair 
prints of each bill shall be duly authenticated by the clerk of the 
parliaments '' or other proper officer of the house of lords, as the 
bill to which both houses have agreed : That the royal assent shall 
be indorsed in the usual form on such fair print, so authenticated, 
which shall be deposited in the record tower in lieu of the present 
engrossment." By the adoption of this system, the engrossment is 
dispensed with, in all cases, and printing substituted in its place ; 
the change being, that instead of a fair copy written on parchment, 
previous to the third reading, and liable to be amended or altered 

1 Hackwell, 163. 3 Jeflferson's Manual, Sec. XL. J. of S. V. 

sjefferson's Manual, Sec XL. But see J. 259; J. of H. IX. 57. 
of H. IX. 276. i J. of H. VIL 88 ; Same, VIIL 159. 

' That is, the clejrk of the house of lords. 



864 LEGISLATIVE ASSEMBLIES. [PaET VIII 

m that stage, a fair copy is printed on paper, after the biU has re 
ceived amendments, and been passed. The second order provides 
for the printing of a fair copy, after all amendments shall have 
been made between the two houses.^ 



CHAPTER FOURTEENTH. 

OF THE PASSING. 

2228. When a bill has been read a third time, and received 
such additions and amendments, as the house may see fit to make 
to it, the next and final motion is, that the bill do pass. This 
motion may be deferred, either tacitly by no order being made -vsith 
reference to it, or by an express order that the bill lie on the table 
until a certain time;- but the general practice is for the motion to 
be made immediately after the third reading and the proceedings, if 
any, thereupon. As a bill has received the apparent approbation of 
the house both as to its principles and as to its details, previous to 
the question for passing, it is extremely rare, that any objection is 
made to this motion ; but it may nevertheless be opposed and de- 
bated, like every other, and instances are not vi-anting, in which it 
has been decided in the negative.-^ 

2229. K, on this motion, the house resolves, that the bill do pass 
it only remains to agree upon the title. In the house of commons, 
the original title is not amended, dming the progress of the bill; 
but is left to be amended, if necessary, when the bill has passed. 
The title being then read by the speaker, and a question put, " that 
this be the title of the bill," it is thereupon amended, on motion, if 
need be, so as to make it conforni to the changes wMch have taken 
place in the biU since its introduction. The change of title, which 
occm-s when one bill is made into t^"0, or two into one, can hardly 
be regarded as an exception to the rule, that no amendment is to be 
made in the title, during the progress of the bill ; for, in the iirst 
case, the title, like the biU, is simply divided into tsvo, and in the 
other the two titles are only put together into one, with the addi- 

1 May, 363. ^ Comm. Jour. LXXX.617 ; Same, LXXXTX. 

a Comm. Jour. XU. 183. 497. 



Chap. XV.] amendments between the houses. 865 

tion in the former, and the retrenchment in the latter, of a few for- 
mal words. In the house of lords, the practice is to amend the 
title, whenever any alterations in the bill render it necessary ; con- 
sequently, the fixing of the title is not there, as in the other house, 
left until the close of the proceedings.^ 

2230. When a bill passes in the house in which it originated, it 
is authenticated by an indorsement or certificate thereon by the 
clerk, and transmitted to the other house to be there proceeded upon 
in the same manner. When it passes in that house, it is there au- 
thenticated in a similar manner, and the fact communicated to the 
house in which it originated, sometimes with and sometimes with- 
out the bill itself. K passed with amendments, it is returned to 
the house in which it originated, for their concurrence in the amend- 
ments. The communications which take place on these occasions, 
and the certificates or indorsements by which the proceedings on 
bills are authenticated, will be stated and explained hereafter. 



CHAPTER FIFTEENTH. 

OF AMENDMENTS BETWEEN THE TWO HOUSES. 

2231. Bills which are passed in one house and sent to the other 
are sometimes agreed to and passed in the latter, precisely in the 
form in which they were received. In that case, if they originated 
in the house of lords, and are agreed to by the commons, they are 
returned to the former house by the commons ; if they originated 
in the commons, and are agreed to by the lords, they remain in the 
latter house, and the commons are informed of the agreement by a 
message. The proceedings between the two houses, with reference 
to the particular bill, are thus brought to a close. Bills of supply, 
which always originate in the commons, are informally returned to 

1 It does not appear to be the present prac- Jour. LXXXVHI. 239. In our legislative as- 
tice, to make a record on the journal of the semblies, the practice of the house of corn- 
title being agreed to, or of the title of the bill mons prevails, and the resolution, adopting 
in any form, unless it is amended, in which the title, whether amended or not, is always 
case, it is stated as follows : Resolved, that the entered on the journal. See Cong. Globe^ 
bill do pass; and that the title be, &c. Comm. XXUI. 749; Same, XXIV. 96. 

73 



S66 LEGISLATIVE ASSEMBLIES. [PaRT VIIL 

that branch, after being passed m the lords, and are presented to the 
sovereign by the speaker. 

2232. It frequently happens, however, that a bill, which has 
passed in one house, is not agreed to by the other in precisely the 
same form, but only with certain modifications or alterations, Vvdth 
which it is returned to the house in which it originated.^ In this 
case, as each of the tAvo houses has passed the bill, in a different 
form, there is not as yet, strictly spealdng, any agreement, or only 
a conditional one betM'een them in relation to it. 

2233. When a bill is thus passed with amendments, it is re- 
turned to the house in which it originated, wdth a message, inform- 
ing that house, that the other has agreed to the bill vnih. an amend- 
ment, or with certain amendments, to which it desires the concur- 
rence of the former. On this message being received and reported, 
the house may suffer the bill to remain on the table without any 
order, or may order it to lie there till a more convenient time for 
entering upon the consideration of the amendments ; or it may 
order the amendments to be taken into consideration on a day 
named ; or it may proceed at once to consider them. In the first 
case, the house may proceed on some other day, either to consider 
the amendments, or to appoint a time for their consideration; in 
the second, the consideration of the amendments ha^dng been fixed 
for a day named, becomes an order of the day for that day, and is 
proceeded with accordingly. 

2234. A proceeding which may take place, preliminary to the 
consideration of the amendments, is to refer them to a select com- 
mittee, to consider and report what it shall think proper to offer to 
the house thereupon. When this course is taken, the committee 
reports what it recommends the house to do with reference to each 
amendment, as, to agree, disagree, or amend. The report, is read 
for the information of the house ; and the amendments are then 
considered and proceeded with in the usual manner ; questions 
being made and put not upon agreeing with the committee, in their 
report, but upon agreeing, &c. with the amendments,^ according to 
the suggestions of the committee, if those suggestions should be 
agreeable to the house. 

2235. It has been seen, that there are three different kinds of 
modifications, which may be made by one house to a bill passed 
by the other, to only one of which, in a strict sense, the term 

1 Appendix, XVI. 2 Comm. Jour. XXVII. 898, 903, 907. 



Chap. XV.] amendments between the houses. 867 

amendment is applied ; but, in the proceedings which take place 
between the two houses, w^ith reference to coming to an agreement 
upon them, they are aU designated by the general term amendment, 
and, with certain exceptions, which will be presently noticed, are 
treated in the same manner. 

2236. When the house proceeds to consider the amendments, 
the first motion is, that they be read ; this being agreed to, and the 
amendments read in course, the next morion is, that they be read 
a second time ; if this motion prevails, the amendments are then 
read a second time, and separately considered, in the same manner 
with amendments reported by a committee. When an amendment 
has been read the second time, and amended, if necessary, or such 
other proceedings have taken place with reference to it, as the house 
may think proper, the final motion is that it be agreed to. Former- 
ly, it appears to have been the practice in both houses,^ as it is now 
in the lords, to read amendments three times, before putting the 
question for agreeing to them ; but, at the present day, amendments 
properly so called, are only twice read in the commons, as above 
stated, and engrossed clauses and provisos three times.'^ The con- 
sideration of a particular amendment may be postponed, or an 
amendment may be committed, or the debate upon it adjourned ; 
but whatever intermediate proceedings take place, the result is, that 
the house agrees, or disagrees, or agrees with an amendment, or 
amendments, to each of the amendments of the other house. 

2237. If the amendments are agreed to by the house in which 
the bill originated, the other house is informed thereof by a mes- 
sage, without the bill, if it is the house of lords which last passed 
the bill, and accompanied by the bill, if it was last passed by the 
house of commons. 

2238. If the amendments agreed to consist of amendments 
properly so called, in paper, they are immediately made by the clerk 
of the house or his assistant, in the bill itself, according to the di- 
rections therefor in the paper, and the agreement is certified on the 
bill itself, and not on the paper of amendments. If the amend- 
ments consist of additions to the bill in parchment, that is, clauses 
or provisos engrossed, the agreement is certified both on the bill 
itsplf, and on the engrossed clauses or riders. 

2239. When the amendments are disagreed to, if no further pro- 
ceeding took place, the bill would be lost ; but, as the house which 
passed the bill with the amendments, may be willing to recede from 

1 D'Ewes, 91, 564. » Comm. Jour. XXXV. 225. 



S68 LEGISLATIVE ASSEMBLIES. [PaET VIII. 

or waive them, on being informed that they are distasteful to the 
other, the next step is to inform that house of the disagreement. 
In this case, as the communication is a mere negative, which car- 
ries no reason \\dth it, it is the usual parliamentary course, for the 
disagreeing house to assign reasons for its disagreement, in order 
that the house, by which the amendments were made, may know 
and weigh the grounds upon which they are objected to.^ K it 
were consistent with the usages of parhament for the disagreement 
merely to be communicated, it might be done by message ; but, as 
it is to be accompanied by reasons, the more formal mode of con- 
ference is necessary. 

2240. If either house should so far disregard the forms of pro- 
ceeding between the two houses, relative to amendments, as to 
communicate a disagreement merely by message, instead of pro- 
posing a conference in order to communicate the disagreement, and 
at the same time to assign its reasons therefor, the method of pro- 
ceeding is, to redeliver the biU, (at a conference,) " to the end that 
the due course of parhament, in the transmitting of things of this 
nature, may be observed." - 

2241. The next step, therefore, after disagreeing to the amend- 
ments, is to appoint a committee to prepare reasons for the dis- 
agreement, to be communicated to the other house at a conference. 
The committee reports reasons, which being considered, and 
amended, if necessary, are agreed to by the house. A message is 
then sent to the other house requesting a conference upon the sub- 
ject-matter of the amendments made by that house to the bill. The 
conference being agreed upon, and the time and place fixed there- 
for, managers are appointed, who attend accordingly ; and, on re- 
turning, report that they have been at the conference, etc., and have 
dehvered to the managers for the other house the reasons for dis- 
agreeing to the amendments made by that house to the bill, and 
have left the bill and amendments with the managers for that 
house. Here the proceedings on the part of the disagreeing house 
terminate, until something further has taken place in the other. 

2242. The managers for the amending house, on retm-ning from 
the conference, report, that they have met the managers for the 
other house, at the conference, etc., who delivered to them the said 
bill with the amendments, together with a paper containing the 
reasons of that house for disagreeing thereto. This report may be 
taken into consideration immediately, or a time may be assigned 

1 HateeU, IV. 10, note. « HatseU, IV. 40. 



CmAP. XV.] AMENDMENTS BETWEEN THE HOUSES. 869 

for that purpose. "When the report is considered, it is first read, 
then the amendment which is the subject of it, and then the house 
proceeds to reconsider the amendment. The proper motion to be 
made is, either that the house does or does not insist upon its 
amendment; and it is immaterial in which form it is made, because, 
when put to the question, it is to be stated affirmatively, namely, 
that the house do insist on its amendment. If this motion is neg- 
atived, a message is thereupon sent to the other house, to inform it 
that the amending house does not insist on its amendments to the 
bill, to which the other house has disagi-eed.^ If it is the house of 
commons, by which the message is sent, the bill is sent with it ; if 
the house of lords, the biU remains with them. The two houses 
are now agreed, and the proceedings relative to the bill are at an 
end. 

2243. If on the other hand, the amending house insists on its 
amendments, the next step is the appointment of a committee to 
prepare reasons to be offered at a conference with the other house 
for insisting. The reasons being reported and agreed to, a message 
is sent to request a conference ; which being agi-eed to, managers 
are appointed, who meet the managers for the other house, and 
deliver them the reasons together with the bUl and amendments. 
The managers on returning to their respective houses report accord- 
ingly, on the one side, that they have been at the conference, and 
communicated the reasons, as directed, and left the bill and amend- 
ments with the managers for the other house ; and, on the other, that 
they have been at the conference, etc., that the managers for the 
amending house informed them that that house insists on its amend- 
ments, for certain reasons, which they gave, and which are accord- 
ingly reported. This report being made, the house may enter upon 
the consideration of it immediately, or may assign a time for its 
consideration. "When considered, it is first read, and then the dis- 
agreeing house proceeds to consider it, upon a motion to insist or 
not insist upon its disagreement to the amendment. If this motion 
is decided in the negative, that is, that the disagreeing house does 
not insist on its disagreement, this is equivalent to agreeing to the 
amenclment,^ and the agreement is communicated to the other 
house by message,^ either with, or without the bill, according as 
the proceeding is in the lords or commons. The two houses are 
thus agreed and the proceedings terminate. 

1 Comm. Jour. XYHI. 297. tion of this kind, (Comm. Jour. XXI. 938,) 

2 Comm. Jour. XXI. 938. was made at a conference, which seems irreg- 
Coirm Jour. LVII. 645. A communica- ular. 

73* 



370 LEGISLATIVE ASSEMBLIES. [PaET VIIL 

2244. If, however, the disagreeing house insists on its disagree- 
ment, and thinks it worth while to proceed any further in the 
matter, the disagreement is to be made known to the other house, 
in order that the latter may have stUl another opportunit}' to recede 
from its amendment. But, as formal reasons for the position of 
each house have now been presented and considered, \^dthout 
effect, it is not according to the usage of parliament to repeat the 
proceeding, even ^^^.th additional reasons ; and, tlierefore, it is not 
competent to the disagreeing house to request another conference ; 
the communication must now be made by means of a free confer- 
ence, the nature of which has already been explained. The man- 
agers for the disagreeing house, on returning, report, that they have 
been at the free conference, etc., and have acquainted the managers 
for the other house, that the former insists on its disagreement to 
the amendments, and that they have left the bill and the amend- 
ments ^dth the managers for that house.^ The managers for the 
amending house, on then part, report that they have attended the 
free conference, etc., that the disagreeing house insists on its dis- 
agreement, and that such and such arguments were used by the 
managers on both sides, and that the managers for the disagreeing 
house hoped, that the amending house would recede from the 
amendments to which the former had disagreed. On consideration 
of this report, the amending house may come to a vote not to 
insist on its amendment ; in which case, the disagreeing house is 
informed by message, accompanied by the biU, if it is the com- 
mons, that the amending house do not insist on the amendments 
made by that house, to which the other has disagreed.^ The biU is 
sent v^dth the message, if the proceeding is in the house of com- 
mons ; if in the lords, the bill is retained. The two houses are thus 
agreed. 

2245. If, notA^-ithstanding the reasons and arguments m'ged at 
the free conference, the amending house still insists on its amend- 
ments, this resolution can only be made known to the other house 
at a second free conference, conducted and reported as before ; on 
the report of "which the disagreeing house may take either of three 
courses, namely : 1. It may come to a resolution no longer to insist 
on its disagreement, in which case the tvro houses are agreed ; or, 
2. It may still insist and proceed to another free conference, wliich 
may termiaate in a resolution of the other house no longer to insist 

5 Comm. Jour. X\Tn. 769, rro. 2 Lords' Jour. XX. 660; Comm. Jour. 

X\'ni. 769, 770. 



Chap. XV.] amendments between the houses. 871 

on its amendment, in which case, the two houses would be agreed ; 
or, 3. It may adhere to its disagreement, in which case, the amend- 
ing house must yield, or there can be no agreement, inasmuch, as 
after adhering, it is not competent to the adhering house to retract 
and agree. 

2246. If the disagreeing house adopts the second course, and 
still insists on its disagreement, another free conference may then 
take place, on the report of which the amending house may recede, 
or adhere, in which latter case, there can be no agreement, unless 
the disagreeing house yields and no longer insists upon its dis- 
agreement. 

2247. Free conferences may be repeated, as long as the matter 
is left open on either side by merely insisting ; and it is not parlia- 
mentary to adhere until after two free conferences have taken 
place.' Either house may, however, pass over the term of insist- 
ing, and adhere in the first instance. On the other hand, the 
amending house may recede at any time from its amendment, in- 
stead of insisting upon it, and agree to the bill, or the disagreeing 
house may recede from its disagreement to the amendment, and 
agree to the same absoliitel^^;j^^OTjAdth an amendment.'-^ But the 
amending house cannot recede from or insist on its own ameiid- 
ment, with an amendment, for the same reason that it cannot 
amend its own bill after having passed it.'^ It may modify an 
amendment from the other house, by ingrafting an amendment on 
it, because it has never assented to such amendment ; but the 
amending house cannot amend its own amendment, because it has 
on the question, passed it in that form.* 

2248. When, on the report of the second, or any subsequent free 
conference, in the house at whose request it has been held, that 
house resolves to adhere to its amendments, or to its disagreement, 
as the case may be, the result is to be communicated to the other 
house, together with the bill, at a free conference ; either with or 
without reasons "* for adhering. If, however, reasons are given on 
the one side for adhering, none can be allowed on the other, for not 
adhering; because that being out of the power of the adhering 
house, aU reasons for doing so must of course be irrelevant. When 
both houses have voted to adhere, the one to its amendments, and 

1 It seems, that tbe lords adhered, on the ' Cong. Globe, XIV. 376. 

report of the fint free conference on the bill * Jefferson's Manual, Sec. XLV.; Gray, IX 

for occasional conformity. Lords' Jour. XVII. 353; Same, X. 240. 

244. 6 Lords' Jour. XVII. 262, 263. 

2 Jefferson's Manual, Sec. XLV. ; Gray, 
IX. 476. 



872 LEGISLATIVE ASSEMBLIES. [PaET VlII. 

the other to its disagreement, the one which last adheres, and with 
whom the bill is left, may inform the other house of the fact, and 
at the same time return the bill to the other by message, or may 
suffer the bill to remain, as it pleases.^ 

2249. Besides the two forms of proceeding thus far described, in 
which amendments are agreed to, or disagreed to, simply, there is a 
third which frequently occurs, namely, agreeing to an amendment 
with an amendment, to which the other agrees, or to which the 
other agrees with an amendment to which the first agrees.^ Every 
part of the amendments, — clauses and provisos engi-ossed, as well 
as amendments properly so called, — may be thus amended. 

2250. If a biU originating in one house is passed by the other 
with an amendment, the originating house may agree thereto with 
an amendment, that being only in the second and not the third de- 
gree ; for, as to the amending house, the first amendment, with 
which it passed the bill, is a part of its text, and is the only text it 
has agreed to. The amendment to that text by the originating 
house, therefore, is only in the first degree, and the amendment to 
that again by the amending house is only in the second degree, to 
wit, an amendment to an amendment, and so amendable. So 
when, on a bill from the originating house, the other, at its second 
reading, makes an amendment ; on the third reading this amend- 
ment is become the text of the bill, and if an amendment to it is 
moved, an amendment to that amendment may also be moved, as 
being only in the second degree.^ 

2251. It is not necessary that an amendment to an amendment 
should be made in the first instance. If the amendments are first 
disagreed to, and the amending house insists upon the amendments, 
the disagreeing house, as it may then resolve not to insist, may also 
agree, mth amendments.* 

2252. When one house agi-ees to the amendments of the other, 
with amendments, it gives no reasons therefor ; the last amend- 
ment, as well as that to which it is an amendment, being supposed 
to carry with it a sufficient reason, until the contrary is shown ; 
and, where an amendment is thus agreed to conditionally, the 
agreement is communicated by message. Thus, if the house, to 
which a bill is retmiied mth an amendment, which is always done 
by a message, agrees to the amendment with an amendment, this 

1 Lords' Jour. XIV. 228 ; Comm. Jour. XIV. ^ Jefferson's Manual, Sec. XLV. ; J. of H. IL 
183, 334, 335; Same, in. 473. 

2 May 366. ■* Comm. Jour. XXIII. 523, 526 ; Same, 

XXVU. 920. 



Chap. XV.] amendments between the houses. 873 

agreement is signified to the former by a message ; and, if that 
house thereupon agrees to the amendment, this agreement is signi- 
fied in like manner.^ The agreement of the two houses, in a case 
of this kind, is always signified by a message, that the last-men- 
tioned amendment is agreed to.^ 

2253. It sometimes happens, that in the proceedings on amend- 
ments betu^een the two houses, some tw^o, or even all three, of these 
forms occur, that is, some amendments are agi-eed to, others disa- 
greed to, and others again are agreed to with amendments. In 
such cases, the communication from the one house to the other 
take place by m.eans of a conference, so long as there is a disagree- 
ment as to any one point. When an agreement takes place, 
whether unconditional, or with an amendment, the communication 
is always made by a message. 

2254. In proceeding upon amendments between the two houses, 
it is a rule, that neither house may at this stage of a bill, leave out 
or otherwise amend any thing, which they have abeady passed 
themselves ; unless such amendments are immediately consequent 
upon amendments of the other house, which have been agreed to, 
and absolutely necessary for carrying them into effect ; ^ it being 
" contrary to the constant method and proceedings in parliament to 
strike out any thing in a bill, which hath been fully agreed and 
passed both houses ; and it would make the work endless, and 
might be of dangerous consequence, if that method should be 
diverted and changed." ^ 

2255. The following case affords a good illustration of the rule 
stated in the preceding paragraph. In the year 1678, the house of 
commons having passed a biU for the more effectual preserving of 
the king's person and government, by disabling papists from sitting 
in either house of parhament, and sent it to the lords, that house 
passed it with three amendments, and a proviso, and returned it to 
the commons. The commons agreed to one of the amendments 
and to the proviso, and disagreed to the remaining amendments ; 
of which they informed the lords, together with then reasons there- 
for, at a conference. Upon consideration of the reasons offered by 
the commons, for disagreeing to the amendments, the lords, with- 
out insisting on their amendments, or receding therefrom, or, indeed, 
voting upon them in any way, agreed to propose to the commons a 

1 Comm. Jour. XXIH. 658, 678, 679, 685; * Grey, VI. 240, 253, 272, 278, 274; Comtn. 
Same, XIX. 50. Jour. IX. 543, 545, 546, 547, 548; Grey, VI. 

2 Comm. Jour. XXXII. 920. 274; Lords' Jour. XIV. 374. 
8 May, 367. 



874 LEGISLATIVE ASSEMBLIES. [PAlil VIII. 

new amendment of the biU by way of expedient. The amend- 
ments originally proposed by the lords, and to wliich the commons 
disagreed, related to certain provisions of the bUl concerning the 
queen's servants. The expedient proposed by the lords was, to 
amend the bill in such a manner, as to omit the queen altogether 
from its provisions. Not having proposed this amendment in the 
first instance, they had, in fact, agreed ^^dth the commons as to this 
part of the bill. The commons, therefore, declined agreeing to the 
expedient proposed, for the reasons already mentioned, which were 
given by them on the occasion.^ 

2256. But though it is not allowable, in the case of a disagree- 
ment to amendments, as above mentioned, to propose to amend the 
bill in a part to which the two houses have already agreed, the 
house, whose amendments are disagreed to, as they may waive 
their amendments altogether, may also propose a modification of 
their own amendments, or new amendments in the place of them ; 
as was done by the lords in the case above stated, by making cer- 
tain limitations touching the number of the queen's servants, to 
which the commons agreed. In this case, the disagreement of the 
commons, the expedient proposed by the lords, the disagreement of 
the commons thereto, were all communicated at conferences. The 
subsequent proceedings, relating to the new amendments, 'were con- 
sidered in the light of new proceedings, and not as a continuation 
of the former. If it had been othermse, free conferences, instead 
of conferences, would have been proper. 

2257. The house, whose amendments are disagreed to, though 
not at liberty to propose new amendments to a part of the bill, to 
which both houses have agreed, as above mentioned, may never- 
theless propose amendments to a part of it, to which the amending 
house has not agreed. Thus, where the lords passed a bill from 
the commons, "uath an amendment, leaving out certain words, 
which amendment was disagreed to by the commons, the lords 
thereupon proposed as an expedient, to insert certain words in the 
■words originally proposed to be left out, to which the commons 
agreed. Li this case, the w^ords originally proposed to be left out 
had not been agreed to by both houses.^ 

2258. If the originating house in the first instance agrees to the 
amendments offered to it, or if either house, afterwards, during the 

' Lords' Jour. XIII. 365, 366, 373, 374, 378, ification by the lords of their own amend- 

384: Comm. Jour. IX. 543, 545, 546, 547, 548; ment; they had already agreed to every part 

Grey, VI. 240, 253, 272, 273, 274. of the bill, except that which they proposed 

3 Lords' Jour. XL VIII. 907 ; Comra. Jour, to amend. 
LXVII. 468, 479. This is only, in fact, a mod- 



Chap. XV.] amendments between the houses. 875 

proceedings on the disagreeing votes of the two houses, with re- 
gard to the bill, passes a vote to agree, the agreement is to be com- 
municated by message ; and the same kind of communication may 
and usually does take place, as we have seen, when either house 
votes to adhere ; but, so long as the matter is kept open by using 
the term " insist," and it may be used as often as desirable, the 
votes are communicated by means of a conference, either simple or 
free. The necessity for this last proceeding is, however, now done 
away with, in both branches of parliament, by resolutions agreed 
to in both on the 12th and 15th of May, 1851, by which it is pro- 
vided that, in cases in which either house disagrees to any amend- 
ments made by the other, or insists upon any to which the other 
has disagreed, such house is willing to receive the reasons for dis- 
agreeing or insisting (as the case may be) by message, without a 
conference, unless the other should desire to communicate the same 
at a conference. In the legislative assemblies of this country, the 
disagreeing votes on amendments to bills, whatever they may be, 
are usually communicated by message, with or without a propo- 
sition for a conference. 

2259. Conferences, in general, as described in the fifth part, and 
conferences on amendments to bills, as described in this chapter, 
which were originally invented and practised at a remote period, 
when the proceedings of one house were not known in the other, 
until they were regularly communicated to the latter, still constitute 
a part of the common parliamentary machinery, and may be re- 
sorted to on proper occasions. They constitute merely a medium 
of communication between the two houses, which is called a con- 
ference where the communication is previously agreed upon by the 
house which makes it, and a free conference where it is left to the 
discretion of the managers, who have no other authority, in any 
case, than to make the communication with which they are charged. 
The rules applicable to the disagreeing votes, which for the most 
part lead to these conferences, are applied to what are denominated 
conferences in our legislative assemblies ; and the two have the 
same general purpose in view, namely, to bring the two houses into 
an agreement in regard to matters in difference between them. But 
here the similarity appears practically to end. With us, the man- 
agers of a conference, instead of being a medium of communication 
merely, constitute and are known as a committee of the branch to 
which they respectively belong ; and the two constitute a joint 
committee of conference, whose function it is to consider and re- 
port upon the subject-matter of difference between the two houses. 



876 LEGISLATIVE ASSEMBLIES. [PaET VIIL 

These committees, and the practice relating to them, are now to be 
described. 

2260. When the house, in which a bill originates, receives it from 
the other with amendments, the latter house, whatever other pro- 
ceedings it may institute or adopt with regard to such amendments, 
when it comes to consider them, has properly but one of three 
courses to pursue, namely, either to agree, disagree, or agree with 
amendments. It is immaterial, in a parliamentary sense, in what 
form the motion is put, inasmuch as an equal division in either 
form requires the casting vote of the presiding officer, and on either 
a motion to amend the amendment may be ingrafted. If either of 
these motions is decided in the negative, it necessarily concludes 
the other, for the positive of either is exactly the equivalent of the 
negative of the other, and no other alternative remains. Thus, for 
example, if the question is for disagreeing, those who are in favor 
of the amendment may propose amendments to it, and make it as 
perfect as they can, before the question is taken on disagTceing to 
it. So if the question is stated on agreeing, amendments may be 
mored.^ On this first consideration, therefore, of a bill returned vnih. 
an amendment from the other house, to the house in Vv^hich it origi- 
nates, no other motion than the above is properly in order. 

2261. When the amending house receives back the bill after this 
first consideration of it, with its amendment agreed to with an 
amendment, or disagreed to altogether, the two houses are not yet 
agreed, and fmrther action is still necessary for that purpose. If its 
amendment is agreed to with an amendment, the proceedings are 
the same with what have just taken place in the originating house, 
namely, the amendment is agreed to, or disagreed to, or agreed to 
with an amendment.^ If the amendment is simply disagreed to, 
the amending house has but one of three courses to pursue, name- 
ly, it may recede from its amendment, insist upon it, or adhere to 
it. K one only of these motions is made, that, of course, which- 
ever it is, must be put ; but two or more of them may be made and 
pending at the same time, in which case, the motion to recede is 
entitled to precedence over the motion to insist ^ and the motion to 
adhere,* and the motion to insist over that to adhere.^ The rules 
applicable to these three motions are the same at every future stage 
in the progress of the disagreeing votes on the biU, whether they 

1 Jefferson's Manual, Sec. XX^TH. * Eeg. of Deb. H. Part 2, 2639; Same, XL 

2 J. of H. II. 334, 33.5 ; Same, III. 473. Part 2, 1656 ; Cong. Globe, XXI. 1833. 
» Cong. Globe, X. 405 ; Same, XX. 695. ^ Coug. Globe, XI. 803. 



Chap. XV.] amendments between the houses. 877 

are in the amending or in the disagreeing house, though the cases 
are not necessarily the same. 

2262. The motion to recede, in the originating house, is, to 
recede from its disagreement to the amendment; if made in the 
other, it is to recede from its amendment. If made in the latter, 
and decided in the affirmative, the effect of the decision is to bring 
the two houses to an agreement at once. If made in the originat- 
ing house, and there decided in the affirmative, the effect of the 
decision is to prepare the way for an agreement,^ and the house 
may then agree,^ or agree with an amendment.^ The immediate 
effect of a negative decision of this question, in both houses, is 
obvious ; it is also equivalent to a vote to insist, but not to adhere.^ 
A negative decision may be followed by a motion to insist, or a 
motion to adhere, or both.^ 

2263. The motion to insist, in its parliamentary sense, merely 
reaffirms the position of the house by which it is adopted, and may 
be adopted, and with like effect by either. It appears to have been 
newly introduced about two hundred years ago, and is said to be 
"a happy innovation, as it multiplies the opportunities of trying 
modifications which may bring the houses to a concurrence." ^ The 
effect of a decision of this motion in the affirmative, and it is 
applied, of course, only where there are disagreeing votes, is, on 
further consideration, to reaffirm the position by which it passes, 
thus, by this motion, the amending house insists on its amendment, 
and the originating house on its disagreement to the amendment. 
After a motion to insist has been decided in the negative, it is then 
in order to recede or adhere.''^ 

2264. The motion to adhere not only reaffirms but strengthens 
the position already taken by the house adopting it, and is under- 
stood to imply that the house will not change its determination. 
But there is nothing irrevocable in the affirmative of this motion, 
and if decided in the negative, it is then in order to recede or 
insist.^ 

2265. In this way a bill upon which there are disagreeing votes, 
sent from one house to the other, with a message announcing the 
action of that other upon it, is usually in the form of one of the 
resolutions above mentioned. K the house which thus receives a 

1 J. of H. 20th Cong. 1st Sess. 695; Same, « Jefferson's Manual, Sec. XXYHI. 
27th Cong. 2d Sess. 990, 998. ' Jefferson's Manual, Sec. XLV. 

s J. of H. VIII. 248, 249; J. of S. 16th Cong. ' Jefferson's Manual, Sec. XXXVIII. 
1st Sess. 385. « Jefferson's Manual, Sec. XXXVIII.; J. of 

3 J. of S. II. 379. H. VII. 399. 

* Cong. Globe, X. 407. 

74 



878 LEGISLATIVE ASSEMBLIES. [PaRT VIII. 

biU does not thereupon come to the desired agreement, it returns 
the bill with a like message. But it is competent for either of the 
houses, besides the resolution, above mentioned, at any of these 
stages, when the bill is in its possession, also to propose to the other 
the appointment of a committee of conference. This it does 
usually", by the appointment, on its part, of a committee to confer 
with a similar committee of the other branch, on the subject-matter 
of difference between the two houses, and proposing the appoint- 
ment of a similar committee, on the part of that branch. The 
motion, commonly made on these occasions is, simply, for the 
appointment of a committee of conference, and this motion being 
agreed to by the house in which it is made, that house immediately 
proceeds to the appointment of the committee, on its part, and to 
notify the other thereof, with its proceedings on the bill, by mes- 
sage. This motion must always emanate from the house in pos- 
session of the bill,^ and be accompanied or preceded by one of the 
resolutions above mentioned, namely, either to recede, insist, or 
adhere ; ^ but this order of proceeding, though much the most 
usual,^ is not essential,^ and conference may, in fact, be asked, 
before the house asking it has come to a resolution of disagreement, 
insisting, or adhering. This, however, is an inconvenient practice, 
and makes some peculiar proceedings necessary which will be 
adverted to hereafter. The motion for a committee of conference 
not uncommonly makes a part of the motion to disagree,^ to recede, 
insist,^ or adhere, in which case a motion to recede takes prece- 
dence,'' and the two motions may be divided,^ or if the motion to 
insist, etc., is made separately, the motion for a committee of con- 
ference may be added to it by way of amendment.^ A conference 
may also be proposed on the report of a committee to whom the 
bill and amendments are referred.^^ 

2266. It has been made a question, whether there could be a 
committee of conference after or accompajiying a vote to adhere, 
the former implying a willingness, and the latter being supposed to 
imply an un\Aallingness, to change the vote already agreed to. 
But, though a vote to adhere is a stronger expression of opinion 
than a vote to insist, and though a conference after adhering is an 

1 Jefferson's Manual, Sec. XLVL Cong. 1st Sess. 291; J. of H. VIII. 261, 264, 

2 Cong. Globe, XV. 701. 266. 

s Cong. Globe, XV. 701. f J. of H. 29tli Cong. 1st Sess. 646. 

* Jefferson's Manual, Sec. XL VI. 8 j. of H. 23d Cong. 2d Sess. 231; J of S. 
6 J. of S. 16th Cong. 1st Sess. 426. 24th Cong. 1st Sess. 363. 

• J. of H. L 267, 268, 269; J. of S. 16th » J. of S. 24th Cong. 1st Sess. 363. 

10 J. of S. m. 218. 



Chap. XV.] amendments between the houses. 879 

unusual practice, yet there are instances, both in parliament ^ and 
in "this country,^ of such conferences being demanded and held with- 
out objection in point of order. In this country, at least, the resolu- 
tion to adhere stands upon the same footing, in this respect, \\dth a 
resolution to insist, and with the more reason, that here a vote to 
adhere may be reconsidered.^ But the foregoing rule applies only 
where the adherence is on one side ; where both houses have 
adhered, conference is no longer demandable.* 

2267. The two houses, of which our legislative assemblies are 
composed, being equal in dignity, it is not the function of either to 
appoint the time and place, for the conference, or to do any thing 
more, if it does any thing at all, than in proposing a conference, to 
propose a time and place for holding the same. Most usually, 
however, nothing is said in the proposition for a conference, with 
respect to the time and place, and in that case, if the proposal is 
agreed to, the committees meet at such time as may be convenient 
in the room appropriated for conference. For obvious reasons, 
each house is left to determine the size and quorum of its commit- 
tee for itself. If nothing is said in either of these respects, the 
ordinary rules, with regard to the appointment and organization of 
select committees, prevail. A committee of conference is not a 
heterogeneous body, acting as one committee, but two committees, 
each of which acts by a majority.^ Every member of each com- 
mittee is to represent the prevailing party of the house to which he 
belongs, on the disagreeing vote in question. 

2268. The house to which a message is sent, announcing the 
action of the other on the biU, and containing a proposal for a con- 
ference, comes to such of the above-mentioned resolutions, as it 
pleases, if any, and accepts or declines ^ the proposition for a con- 
ference ; it may either do this at once,'^ or take such intermediate 
steps, with regard to the message, as it may think necessary and 
proper ; as by postponing it, or ordering it to lie upon the table ; ^ 
or by referring it,^ and, on the report of the committee, declining,^^ 
or acceding to, the conference. The result, whatever it may be, is 
to be sent to the house proposing the conference by message. K 

1 Jefferson's Manual, Sec. XLVI. » J. of H. HI. 50, 52. 

2 J. of H. II. 133, 134, 138; Same, VIII. 63; ^ Ann. of Cong. 5th Cong. Vol. 1, 28. 
game, IX. 746; Reg. of Deb. X. Part 2, 2493. 8 j. of S. 19th Cong. 1st Sess. 300. 

3 J. of H. I. 106, 107, 108. 9 J. of S. 19th Cong. 1st Sess. 358; Same, 
« Reg. of Deb. II. Part 2, 2603. 23d Cong. 1st Sess. 112, 113. 

6 J. of H. 30th Cong. 1st Sess. 1283; Cong. lo J. of S. 19th Cong. 1st Sess. 306, 307. 
Globe, XV. 1179. 



880 LEGISLATIVE ASSESIBLIES. [PaET VIH 

the conference is declined, the bill is to be returned to the house 
proposing it, with such resolutions thereto, as that house may think 
proper. The other house may then resort to such measures, ^^dth 
regard to the matter in question, as it may think advisable and con- 
venient. If the conference is acceded to, the committee is there- 
upon appointed, either immediately or after an mten^al, in the same 
manner with other select committees, and the appointment is noti- 
fied accordingly to the house proposing the conference by message. 
When the committee is thus appointed, the papers, including the 
bill, and proceedings thereon, together ^nth the resolution for their 
appointment, are delivered to the committees, and the two commit- 
tees thereupon proceed. 

2269. The authority of committees of conference is that of the 
houses to which they respectively belong, with regard not only to 
the positions of each aheady taken, but to such expedients, vdthin 
the rules above mentioned, as may be proposed by one committee 
and agreed to by the other.^ In this way, it is the business of com- 
mittees of conference to cover, and by their report, if it is adopted, 
to make an end of all matters in dispute betw^een the t^^o houses. 
Hence the committees of conference may come to an agreenaent or 
disagreement, or they may agree in part only, and disagree for the 
residue ; ^ and their report is to be drawni up and made accordingly. 
In all cases, in which a conference is asked, after a resolution to 
disagree, etc., the committee, on the part of the house proposing it, 
is to leave the bill and papers with the committee of the other, or 
if that committee refuses to receive them, on the table in the con- 
ference room ; but where a conference is asked before the house 
asking it has come to a resolution of disagreement, etc., the papers 
are not to be left with the committee of the other house, but are to 
be brought back to the first, to be the foundation of the vote to be 
there given.-^ Having agreed upon their report, it is then to be 
made accordingly. The report of a committee of conference is in 
one of three forms, namely, either that the committee have agreed, 
or that they have disagreed, or that they have agreed in part, and 
disagreed for the residue, and, in either case according to the house- 
in which the report is made, either with or wdthout the papers. The 
report is the same in both branches, and is made in each by the 
committee which belongs to it, accompanied by the bill and othei 
papers in that branch, the committee of which is entitled to them. 

1 J. of H. I. 127, 192, 543, 544; J, of S. 16tli 2 j. of H. T. 598, 599. 
Cong. 1st Sess. 291, 294. ^ Jefferson's Manual, Sec. XLVL 



Chap. XV.] amendments between the houses. 881 

2270. The report of a committee of conference, if it is an agree* 
ment, and accompanied by the bill and other papers, is for obvious 
reasons, a quasi privileged question, and may be made at any time,i 
even after an incidental motion, as, for example, for a call of the 
house,^ is made and pending. A report of this kind is objection- 
able, in point of form, if the committees have discussed and consid- 
ered amendments not committed to them,^ or have introduced 
new matter,'* or have not confined themselves to the differences be- 
tween the houses, but have undertaken to report future legislation,^ 
or have yielded or taken possession improperly of the bill or other 
papers ; ^ but objections in point of form, must be made when the 
report is offered ; if the report is allowed to be introduced, formal 
objections can only avail afterwards as reasons for not agreeing to 
the report." A report of this kind need not be proceeded with im- 
mediately, but may be postponed, or referred to a select committee, 
or a committee of the whole.^ A similar report (without the bill) 
is ready, at the same time, to be made in the other branch, by the 
committee, on its part. If made immediately, the consideration of 
it is deferred until the bill comes into that branch ; or the maldng 
of the report may be deferred until that time. 

2271. When this report is taken into consideration, in the house 
to which the bill is returned, whatever intermediate proceedings 
may take place, the question is to be taken thereon, as it stands, as 
a whole, without amendment,^ or division ; '^^ though it has been 
held that the report might be divided,^^ that it might be agreed to in 
part and disagreed to for the remainder,^^ aiid that it might even be 
amended.^^ If the report is agreed to, it is then sent with the bill to 
the other house, by a message, and that house proceeds to consider 
the report of the committee of conference, on its part, now made or 
proceeded to for that purpose. If the report is rejected,^* such fur- 
ther proceedings take place, Mdth regard to the bill, by the house in 
which it remains, as that house may think proper and convenient ; 
and it is no objection to such proceedings that they are recom- 
mended in the report of the committee which has been rejected. ^^ 

1 J. of H. 32d Cong. 1st Sess. 481. » J. of S. H. 270; Eeg. of Deb. U. Part 2, 

2 J. of H. 31st Cong. 1st Sess. 1590. 2672; Cong. Globe, XI. 869. 

8 J. of H. VIII. 383. 10 Cong. Globe, XV. 961, 1179. 

< J. of H. 30th Cong. 1st Sess. 811. "J. of S. III. 304; Same, IV. 71; Cong. 

6 Cong. Globe, XI. 902. Globe, XI. 505. 

« Reg. of Deb. X. Part 2, 2557; Cong. Globe, 12 j. of S. V. 359, 360. 
VII. 246. 13 J. of S. V. 609. 

» Reg. of Deb. X. Part 2, 2557. " J. of S. 19th Cong. 2d Sess. 284, 285. 

» J. of H. VIII. 63, 65, 74 ; Same, IX. 660. " J. of H. 32d Cong 2d Sess. 409. 

74* 



882 LEGISLATIVE ASSEilBLIES. PaET VIII. 

2272. If committees of conference cannot come to an agreement, 
they make a statement of this fact,^ by '^^'ay of report, in their re- 
spective houses, accompanied by the bill in the house, which is 
entitled to possession of it, and that house thereupon proceeds, in 
relation to it, in such manner as it deems most convenient and 
proper. In this case it is usual for the committee on the part of 
each branch, respectively, to recommend "^'hat course it ought to 
pursue in regard to the disagreeing votes between the t^^o houses.- 
Where committees of conference are unable to agree, the bill is to 
be sent from one house to the other, with messages, in the same 
manner as if no conference had taken place. Where a committee 
of conference reports an agreement in part only, and states that the 
committees were unable to agree for the residue, the agreement 
and disagreement V are to be proceeded ^dth, in the manner above 
mentioned, but the report and bill cannot be sent out of the house, 
in \\^hich the latter belongs, so long as any thing remains to be 
done there in reference to it. 

2273. Where a proposition for conference is declined, the biU is 
to be returned to the house proposing the conference with the mes- 
sage declining it ; in which case, and also where the report of a 
committee of conference is rejected,^ or where the committees fail 
of an agreement,^ the house, in possession of the bill, may propose 
a further conference, to be agreed to, held, and reported, in the 
manner already mentioned.^ For this purpose, if necessary, and 
also for the purpose of any other proceeding on disagreeing votes, 
with relation to bills, either house may reconsider its former votes, 
and, if necessary, send to the other for the bill.'^ 

2274. The house to which a bill is returned vidth amendments, 
though in strictness, it has no other power over the bill than to pass 
upon the amendments,' and though the proceeding is an unparlia- 
mentar}- one, may not^:vithstanding dispose of the bill, if that is the 
effect of the order, by ordering it to He on the table,^ or by post- 
poning the bill, together with the report of a committee of confer- 
ence thereon, to a day beyond the session.^ 

2275. K the tv^^o houses, in some one of the ways above men- 
tioned, come to an agreement, concerning amendments in reference 



1 J. of H. I. 127. 5 J. of H. lY. 366. 

2 J. of S. L 4SS ; Same, HI. 392 ; J. of H, « J. of H. I. 106, 107, lOS ; J. of S. 32d Cong. 
19th Cong. 2d Sess. 370. 2d Sess. 140, 141. 

s J. of S. V. 472, 475, oSl, oS6 ; J. of H. IX. ' Eeg. of Deb. IV. Part 2, 2698. 

618, 619, 620. 8 Cong. Globe, XL 649. 

* J. of S. V. 581, 586. 5 J. of S. V. 581, 586. 



Chap. XVL] authentication of bills. 883 

to which they have disagreed, the amendments, if any, are adopted, 
are inserted or certified in the usual manner, and the bill passed 
like any other bill. If they do not come to an agreement, the bill 
is, of course, lost, and remains on the files of that branch where it 
was last left. It may be resuscitated, however, and further attempts 
made, to come to an agreement in the manner above mentioned, 
by either house at its pleasure, during the same session.^ 



CHAPTER SIXTEENTH. 

OF THE AUTHENTICATION OF BILLS BETWEEN THE TWO HOUSES. 

2276. When a bUl passes in the house, in which it originated, a 
certificate or memorandum is made within it, in the Norman 
French language, indicating the proceedings of the house with 
reference to it. A similar certificate is made upon a bill, which, 
having previously been passed in one house, and sent to the 
other, is there passed. Bills are also authenticated by the signa- 
ture of the clerk of the house.^ The different kinds of certificates 
will appear from the following classification of bills, with reference 
to the different proceedings upon them. 

2277. I. Bills originating in the house in which they are passed, 
and which pass as they were engrossed, or with such amendments 
only, as are made in the engrossment, by the addition or erasure of 
words. BiUs of this description originating in the house of com- 
mons have the words, soit bailie aux seigneurs, " let it be dehv- 
ered to the lords," written by the clerk within the bill, at the top, 
towards the right hand.'^ Those which originate in the lords are 
subscribed at the foot with these words, soit bailie aux communs, 
" let it be delivered to the commons." * 

2278. II. Bills originating in the house in which they are passed, 
which do not pass as they were engrossed, or with slight amend- 

1 The practice above described is that somewliat more cumbrous forms of parliament 

which prevails in the congress of the United should not be practised. 
States, and it is believed in all the other legis- ^ Bramwell on Bills, 137, 138. 
lative assemblies of this country. There ^ D'Ewes, 45; Hackwell, 154. 
Beems to be no good reason, however, why the * D'Ewes, 45 ; Hackwell, 154. 



884 LEGISLATITE ASSEMBLIES. ' [PaRT YIII, 

ments only, but "Vv"ith a proviso, or schedule of additions, that is, a 
clause or clauses in parchment, filed to the bill. Bills of this de- 
scription are ^rritten upon at the top, if fi-om the commons, or at the 
foot, if from the lords, "^dth these words, soit bailie aux seig-neurs, or 
mix commims, avecqiie im proviso annex, or avecque un schedule annex, 
" let it be delivered to the lords, or to the commons, with a proviso, 
or with a schedule, annexed," as the case may be ; and the proviso or 
schedule is also certified, soit bailie aux seignevrs, or soit bailie aux 
communs, as the case may be.^ 

2279. III. Bills of the first class, agreed to in the house to "^'hich 
they are sent, without amendment, addition, or pro^dso, are sub- 
scribed, under the subscription or certificate of the other house, with 
the words, a cet bill les commnns, or les seigneurs, as the case may 
be, sont assentus, " to this bill the commons " or " the lords," as the 
case may be, " have agreed." - 

2280. IV. Bills of the first class, agreed to in the house to which 
they are sent, vvith amendments, additions, or provisos, are certified, 
under the certificate of the other house, ^^'iih. the words, a cet bill 
avecque des amendments, or avecque les amendments a mesme le bille 
annex, or avecque tm proviso annex, or avecque tin schedule annex, 
les communes, or les seigneurs, as the case may be, sont assentus, 
" to this bill with amendments," or, " ^^th the amendments to the 
same annexed," or, " v."ith a pro^T.so annexed," or, " ^sAih. a schedule 
annexed, the commons " or " the lords, have agreed." ^ K, besides 
amendments, a bill passes with additions or provisos, or both, the 
certificate is varied accordingly. In cases of this kind, the amend- 
ments are in paper, and not separately certified ; but a proviso or 
schedule is in parchment, and is certified as a new bill, soit bailie 
aux seigneurs, or aux communs, as the case may be. 

2281. Y. Bills of the second class, agreed to in the house to 
which they are sent, ^A-ithout amendment, addition, or proviso. In 
cases of this kind, the bill is certified vidth the words, a cet bill 
avecque ^in proviso annex, or avecque un schedule amiex, les commtms, 
or les seigneurs, as the case may be, sont assentus. The pro"\"iso or 
schedule is also certified, a cet proviso, or a cet schedule, les com- 
muns, or les seigneurs, as the case may be, sont assentus. 

2282. VI. Bills of the second class, agreed to in the house to 
which they are sent, ^^dth amendments, additions, or provisos. In 
cases of this kind, the bills themselves, and the additions or pro- 

1 Hackwell, 162; Dwarris, I. 217, 218. s D'Ewes, 20, 26, 669; HackweU, 164, 165. 

s Hackwell, 154. 



Chap. XVL] authentication op bills. 885 

visos filed to them being separately certified, on passing in the 
house in which they originated, when passed in the house to which 
they are sent, with amendments, provisos, or additions, they are 
also separately certified ; as, for example, a cet Mile, or a cet proviso, 
avecque des amendments, or avecque un proviso, etc., les communs, or 
les seigneurs, sont assentns ; the rule being, that every engrossed 
proviso, clause, or addition, which is separately certified, is to be 
treated as a separate bill. 

2283. "When a bill, which has passed in one house, is passed in 
the other with amendments, strictly so called, which are agreed to 
by the former, the clerk of that house thereupon immediately makes 
the amendments in the bill, according to the directions in the paper.i 
"When the amendments consist of engrossed clauses, provisos, or 
additions, which are separately certified, the agreement of the house 
thereto is certified in the same manner as to a bill ; if such provisos 
or additions are agreed to with amendments, or with engrossed 
provisos or additions, which are agreed to, the proceedings with 
reference to the latter are the same as if they had been made to a 
biU. 

2284. It is supposed to be the general practice, in our legislative 
assemblies, when a bill is ordered to be engrossed, to engross it 
with every thing that makes a part of the bill, whether consisting 
of amendments, properly so called, or of additions and provisos, 
written out at length, in the places in which they respectively be- 
long in the biU ; and that if any such amendments are adopted 
afterwards, which make it necessary, the bill is reengrossed before 
it is sent to the other house ; so that when a bill is sent from the 
house in which it originates, to the other, it belongs to the first class 
above mentioned. It is supposed, also, that when bills are returned 
to the house in which they originate, with amendments, the latter 
are included in a single schedule, whether they consist of amend- 
ments, properly so called, or of provisos and additions. In either 
case, and also in the parliamentary form, if that is adopted in any 
case, or prevails generally, the certificate of a bill, mutatis mutandis^ 
is to be made and authenticated by the clerk in English. 

1 Hackwell, 163, 167. 



886 LEGISLATIVE ASSEMBLIES. [PaET VIIL 



CHAPTER SEVENTEENTH. 

OF communicatio:n'S between the two houses, eelative to 

THE PASSING OF BILLS. 

2285. When a bill passes in the house in which it originates, it 
is then sent to the other, mth a message, requesting the concur- 
rence of the latter thereto.^ 

2286. When a bill, originating in the house of lords, and passed 
there, is sent to the commons, and passes also in that house, T^dth- 
out amendment, a message is sent to the lords returning the bill, 
and to acquaint them that the house of commons has agreed to 
the same wdthout amendment. When a bill, originating in the 
house of commons, and passed there, and sent to the lords, is there 
passed without amendment, the bill is not returned, but a message 
is sent to the house of commons, to acquaint them that the lords 
have agreed to the bill, without amendment. 

2287. When a bill, originating in one house, and passed there, 
and sent to the other, is there passed vdth amendments, it is re- 
turned to the house in which it originated, "with a message, to ac- 
quaint that house, that the house to which it was sent has agreed 
to the same with some amendments, to which the latter desires the 
concurrence of the former. 

2288. If it is the house of commons to which a bill is thus sent, 
-with amendments, and the amendments are there agreed to, the biQ 
is returned to the lords "v\dth a message, to acquaint them, that the 
commons has agreed to their amendments to the bill. If it is the 
house of lords to which a bill is sent "udth amendments, which are 
there agreed to, the bill is not returned to the commons, but a mes- 
sage is sent to inform them that the lords have agreed to their 
amendments. 

2289. A bill can only be taken to the lords from the house of 
commons, when the latter is sitting ; for when the bUl is ready, the 
member, who has been ordered to carry it to the lords, takes the.bUl 
off the table, and holds it up in his hands, opposite the door, till the 
speaker directs the members to attend their messenger. The rule 
and practice of the house of lords is, to receive no message from 
the commons, miless eight members at least attend vvith it. When 

1 Bills, which have been passed in one other, be examined by a committee appointed 
house, should, before they are sent to the for the purpose. See J. of S. I. 401. 



Chap. XVIL] relative to the passing of bills. 887 

bills have passed in the house of commons, with a general concur- 
rence, and on other occasions on which the house of commons 
wishes to have an opportunity of showing its approbation of the 
measure, it is customary for a great number of members to follow 
their messengers. The member ordered to take the bill to the lords 
ought to carry it there immediately, and if the lords be not then 
sitting, he ought to bring it back to the clerk ; in case of such mem- 
ber's absence, another may be appointed in his place.^ 

2290. It will be perceived from the foregoing statement of the - 
communications between the two houses relative to the passing of 
bills, that bills when agreed to by both houses remain in the house 
of lords. This is the case with all except money bills, the concur- 
rence in which is signified in the usual manner, but which are 
always returned informally to the house of commons without any 
message, for the purpose of being presented by the speaker.^ 

2291. The communications between the two houses of parlia- 
ment, relative to the passing of bills, are always by message, until 
there is a disagreement by one house to the amendments of the 
other ; in which case the communication is made by means of a 
conference. In this country, as we have seen, they take place by 
message only. These proceedings have been already explained in 
connection with the subject of amendments between the two 
houses. Messages and conferences, relative to bills, take place in 
the same manner as with reference to other matters. 

2292. In those of our legislative assembhes, in which it is re- 
quired, by the constitution, that every biU, before it becomes a law, 
shall receive the executive approval, and in which, consequently, 
bills must be duly presented to the executive department, it is sup- 
posed, that all bills, until sent out of the house for approval, remain 
in the house in which they were last agreed to. It is not the usage, 
for one of the two houses of a legislative body to inform the other 
by what numbers a bill has passed ; ^ nor where a biU from the 
other house has been rejected, does the house, in which the pro- 
ceeding takes place, give the other any notice of the rejection, or 
returns the bill to that house ; but the matter passes sub silentio to 
prevent unbecoming altercations.* This is the ordinary rule of 
parliamentary practice, subject, of course, to such particular regula- 
tion as each assembly may prescribe. In congress, it is provided, 
that, " when a bill or resolution which shaU have passed in one 

>Bramwell on Bills, 139, 14-1, 145, 146. » Grey, X. 150. • 

« May, 369. See Hatsell, IH 161, 162. * Black. Com. L 133. 



888 LEGISLATIYE ASSEMBLIES. [PAflT VIII. 

house, is rejected in the other, notice thereof shall be given to the 
house in which the same shall have passed." It is the practice 
under this rule, when a bill, passed in one house and sent to the 
other, is there disposed of permanently, although not by a technical 
vote of rejection, to retui-n the bill and notify the originating house 
of such rejection, by means of a message ; as when the question 
on any of the regular stages of a bill, is decided in the negative, or 
when the bill is postponed, either indefinitely, or to a day beyond 
the session. The rule appears to extend to vetoed bills.^ 

2293. It is usually provided, by rule, in our legislative assem- 
blies, as it is by a joint rule in congress, that, while bills are on 
their passage betv\-een the two houses, they shall be under the sig- 
nature of the clerk of each house, respectively ; and without any 
rule to this effect, it seems to be a part of the duty of the clerk, to 
authenticate all papers, when passmg bet\\^een the two houses, by 
his signature ; but, in the absence of any rule or usage, in this 
respect, it seems that every bill or other paper is sufficiently authen- 
ticated by the message which accompanies it. 

2294. K messengers, as we have seen,^ commit an error in deliv- 
ermg their message, and the mistake is seasonably discovered, they 
may be admitted of then* own accord, or may be called in by the 
house to which they are sent, to correct their mistake.^ But this 
practice, though equally applicable to messages on bills, is not 
likely to extend to any errors in the contents of bills and amend- 
ments, winch are not ordinarily stated in the message, or officially 
known to the messengers. JNIistakes of this kind, which are not 
discovered at the time, or do not then admit of correction, may be 
the subject of a subsequent message, and corrected accordingly. 

1 J. of S. n. 337; J. of H. IX. 705. ^ Grey, lY. 41; Jefferson's Manual, § XLVIL 

a See ante, § 818. 



Chap. XVIIL] commencement of bill, 889 



CHAPTER EIGHTEENTH. 

OF BILLS WHICH ARE REQUIRED TO BE COMMENCED IN ONE 
HOUSE IN PREFERENCE TO THE OTHER. 

2295. It is a general principle of parliamentary law, which pre- 
vails in England, and in this country, with certain exceptions, 
which wiU be presently mentioned, that aU biUs may be commenced 
in either house, and may be concurred in, amended, or rejected, by 
the other. This principle is inserted in several of the State consti- 
tutions, but is clearly unnecessary.^ The exceptions, which, in par- 
liament, are the result of precedent and usage only, are, in this 
country, the result of constitutional provision, and are now to be 
considered. 

2296. From considerations of convenience, bills concerning 
either house of parliament, exclusively, usually begin in the house 
whose proceedings are intended to be affected thereby.^ This rule, 
though not a matter of right, is so obviously convenient, that it 
would undoubtedly be held applicable here. 

2297. The lords claim exclusive right of originating biUs for res- 
titution of honors or blood ; .and in that house, estate bills, divorce 
bills, bills of attainder, and of pains and penalties, and others of a 
judicial nature, generally begin ; in consequence, it is presumed, of 
the forms of judicature possessed by that house exclusively .^ 

2298. The sovereign claims and exercises the privilege of intro- 
ducing a bill, which usually passes in every parliament, or for a gen- 
eral pardon. This is an exception to the common practice of pass- 
ing bills ; being sent by the crown, and read only once in each 
house. A biU of this kind receives the royal assent, after it has 
passed both houses, in the ordinary form.* 

2299. The house of commons by precedent and usage, particu- 
larly since the time of the restoration, has asserted and maintained 
its right to begin biUs of supply, and all other bills for imposing any 
pecuniary charge or burden upon the people ; and the house of 
lords has now for many years desisted either from beginning any 
bill-, or from making amendments to any past in the other branch, 

1 Maryland, Virginia, South Carolina, Ala- " Bramwell on Bills, 3. 

bama, Mississippi, Tennessee, Ohio, Indiana, ^ Bramwell on Bills, 2. 

Illinois, Missouri, Arkansas, Texas, Iowa, * May, 345. 
Wisconsin, California. 

75 



890 LEGISLATIVE ASSEMBLIES. [PaRT VIIL 

which either in the form of positive taxes, or pecuniary penalltes, 
or in any other shape, might by construction be cojisidered as im- 
posing burdens upon the people.^ 

2300. This rule extends in practice to all bills and provisions in 
bills affecting the public revenue ; to all such as impose any rate, 
toll, or duty, pecuniary penalty, fine, or fee ; and to all bills contain- 
ing provisions which in their consequences necessarily increase or 
diminish any previously existing rate, toll, or duty ; but it does not 
extend to bills for imposing or removing personal disabilities, inca- 
pacities, or punishments.^ 

2301. The constitutional power of the house of commons to 
originate bills of the above description, without any interference on 
the part of the lords, has occasionally been abused by annexing to 
bills of supply enactments which in another bill would be rejected 
by the lords ; but which being contained in a bill that they have no 
right to amend, must either be suffered to pass unnoticed, or cause 
tlie rejection of a measure highly important, perhaps, for the pubhc 
service. Such a proceeding, under the name of tacking, is a great 
infringement of the privileges of the lords ; and has been resisted 
by protest, by conference, and by the rejection of the objectionable 
bills. It was in reference to this practice, that the lords on the 9th 
of December, 1702, passed a standing order, that the annexing of 
any clause to bills of aid, the matter of w^hich is foreign to and 
different from the matter of such bill, is unparliamentary, and tends 
to the destruction of the constitution. There have been no recent 
occasions on which clauses have been irregularly tacked to bills of 
supply, but so lately as 1807, the standing order above-mentioned, 
was read, and a bill rejected on that account in the house of 
lords ; but in that case the clause had been inadvertently inserted, 
and it was doubtful whether it was a tack within the intention of 
the standing order.^ 

2302. When, through inadvertence in the fi-amers of a biU, or in 
the addition of amendments to any bill of the house of commons, 
it happens that this rule is invaded, the latter is very vigilant in 
noticing it, and, thereupon the further consideration of such bill, or 
of the lords' amendments, is put off for the session, allowing, how- 
ever, a fresh bill, as passed by the lords, to begin de novo in the 
commons.* Sometimes the amendments of the lords, though not 
strictly regular, do not appear materially to infi-inge the privileges 

iHatsell, 126, 147, 154; Comm. Jour. IX. s May, 409, 410. 
238. * Bramwell on Bills, 5, 

s Bramwell on Bills, 1, 2. 



Chap. XVIIL] commencement of bill. 891 

of the commons, in which case it has been usual to agi'ee to them, 
with special entries in the journal. The commons have, also, by 
standing orders passed in 1831 and 1849, somewhat relaxed the 
rule, by providing that this house will not insist on its ancient and 
undoubted privileges, when the object of such forfeiture is to secure 
the execution of the act ; or where fees are imposed in respect of 
benefit taken, or service rendered under the act ; or when it is a 
private biU for a local or personal object.^ 

2303. The constitutional privilege, above mentioned, in virtue of 
which, it is the practice of the house of commons to originate 
taxes, has been extensively copied in this country ; a corresponding 
provision being found inserted in all our constitutions, except in 
those of the following States, namely, Rhode Island, Connecticut, 
New York, Maryland, Virginia, North Carolina, Florida, Tennes- 
see, Ohio, Elinois, Michigan, Arkansas, Wisconsin, and California. 
In the constitutions of the United States, and of the States of 
Maine, New Jersey, Pennsylvania, Delaware, South Carolina, 
Georgia, Alabama, Mississippi, Louisiana, Kentucky, Indiana, 
Missouri, and Texas, the language is, " that all bills for raising 
revenue " shall originate in the house of representatives ; in those 
of New Hampshire and Massachusetts, it is that " aU money bills " 
shall originate in the house of representatives ; in that of Vermont 
" all revenue biUs," and in that of " Iowa aU bills for revenue are 
required to originate in the house of representatives ; " and in that 
of Georgia, the words, " or appropriating moneys," are added to 
the requisition already made. In aU the constitutions in which it 
is provided substantially that taxes shall originate in the lower 
branch, it is provided that the senate or first branch may propose 
or concur therein with amendments, as on other bills, thus prevent- 
ing the process of tacking; but in Maine, Louisiana, and Ken- 
tucky, it is provided, further, that the senate shall not, under color 
of amendments, introduce any new matter which does not relate to 
raising a revenue. The constitution of Delaware contains a simi- 
lar provision in substance. 

2304. It will be perceived from the foregoing enumeration, that 
the clauses relative to taxation are divisible into two classes, 
namely, first, those which relate to raising revenue only, and second, 
those Mdiich embrace both the raising and spending of money. 
The constitution of Delaware is the only one which undertakes to 
define a revenue bill ; it declares that " no bill, from the operations 

1 May, 407, 408, 409. 



892 LEGISLATIVE ASSEMBLIES. [PaET' VIII. 

of which, when passed into a law, revenue may incidentally arise, 
shaU be accounted a bill for raising revenue." This is so obvi- 
ously the proper signification of the word revenue, that it would 
probably be admitted as conveying the true meaning; rejecting the 
parliamentary meaning of the term, by which penalties and for- 
feitures taken from the subject are accounted a revenue, whether 
they go into the public treasury or not. The term, " money bills," 
as used in the constitutions of New Hampshire and Massachusetts, 
are broad enough to include both the raising and the appropriation 
of money. "Whether the senate in amending a bill of the house, 
so as to make it a bill for raising revenue, transcends its constitu- 
tional powers, or not, is a question of constitutional right, between 
the two houses, and not of order or privilege.^ 



CHAPTER NINETEENTH. 

OF THE EULE WHICH PEECLUDES THE SA^ME QUESTION FROM 
BEING A SECOND TBIE PRESENTED DURING THE SAIIE SESSION, 
IN ITS APPLICATION TO BILLS. 

2305. It is a rule of parhamentary practice, which has aheady 
been generally considered, that no question or motion can regularly 
be offered, upon which the judgment of the house has been ex- 
pressed during the current session. This rule is essential, in order 
to avoid contradictory decisions, to prevent surprise, and to afford 
proper opportunity for determining questions as they severally arise.^ 
It is equally essential, however, that the discretion of the house 
should not be so far confined by its rules of proceeding, as to 
subject its votes to irrevocable error, or to prevent it from changing 
its determination, when such change is clearly proper and nec- 
essary. 

2306. The constitution of a deliberative assembly is necessarily 
such, that it may occasionally be constrained by its own rules to 

1 T. of H. 27th Cong. 2cl Sess. 287. in a modified form. That of Tennessee pro- 

2 May, 233. The principle of parliament- vides that " after a bill has been rejected, no 
ary law elucidated in this chapter, is inserted bill containing the same substance, shall be 
in the constitutions of Tennessee and Texas, passed into a law during the same session." 
and in those of South CaroUna and Georgia, 



Chap. XIX.] rule as to the same bixl. 893 

come to a determination, which does not express its deliberate 
sense ; but if such a determination could not, under any circum- 
stances, be reconsidered and rescinded, the rules of proceeding 
would be the means of obstructing, rather than facilitating, the will 
of the assembly. Hence, while the rule above alluded to is recog- 
nized as a general one, it admits of such exceptions, and is applied 
in such a manner, that the discretion of the assembly is not thereby 
unnecessarily restrained. As it is in reference to bills, and the 
proceedings upon and in relation to them, that this rule receives its 
moBt important application, it is proposed to give it a separate 
consideration in this place. 

2307. The rule is thus expressed in a declaration of the house of 
lords, entered in the journal of May 17, 1606 : " That when a bill 
hath been brought into the house, proceeded withal, and rejected, 
another bill of the same argument and matter may not be renewed 
and begun again, in the same house, and in the same session." ^ 
In the house of commons, " it was agreed for a rule," June 1, 1610, 
" that no biU of the same substance be brought in the same ses- 
sion." 2 Neither of these statements fully expresses the rule, as un- 
derstood in the practice of the present day. It is not now neces- 
sary, for example, if it ever was, to the application of the rule, that 
a bill should be rejected, as expressed in the rule of the lords ; inas- 
much as a new bill cannot be introduced, while a similar bill is 
pending, or has passed. Nor does the rule apply only to the intro- 
duction of bills, as might be supposed from the statement of it by 
both houses ; since it equally precludes those motions, which at the 
present day, are prehminary to the introduction of bills. Neither 
does it require the pendency of a biE, in order that the judgment 
of the house may be expressed in such a manner, as to preclude 
the introduction of the subject a second time ; a judgment of the 
house upon a motion for a bill being equally effectual to preclude 
the introduction of a bill, as a judgment upon the bill itself. 

2308. In explaining this rule, it wiU be most convenient to con- 
sider it with reference to the several circumstances, in which occa- 
sion may arise for its application. At the same time, it will be 
useful to point out the limitations and restrictions, to which it is 
subject, with a view to enable the house to reconsider, and, if nec- 
essary, to rescind a prior determination. The several steps in the 
proceedings with reference to biUs, to which it is necessary to call 
attention, in order to explain the rule in question, are : 1, when a 

» Lords' Jour. IL 435. a Comm. Jour. I 434. 

75* 



894 LEGISLATIVE ASSEMBLIES. [PaRT VIIL 

motion for a bill has been affirmed or denied ; 2, when a biJl is 
pending; 3, when a bill has been rejected ; and, 4, when a bill has 
been passed. It is proposed, in the first place, to make some pre- 
liminary observations applicable to the general subject, and then, to 
consider the rule in question with reference to the different occa- 
sions above indicated for its application. 



Section I. Of the Application of the Uule dt general. 

2309. The terms made use of to indicate the identity or simi- 
larity of two propositions, namely, " of the same argument and 
matter," and " of the same substance," which signify the same 
thing, clearly imply, that if the propositions in question are the 
same in substance and effect, however different in form, they are 
within the rule. Where the house has merely come to a vote, 
either rejecting or allowing a motion for the introduction of a bih, 
and a motion is afterwards made, which is objected to on the 
ground of its identity with the former, the question must be deter- 
mined by comparing together the tA^^o propositions as they stand ; 
although if biUs should be introduced in pursuance of the two, they 
might be materially different from each other. Thus, where a mo- 
tion was made for leave to bring in a bill " to relieve from the pay- 
ment of church-rates that portion of her majesty's subjects who 
conscientiously dissent from the established church," which was 
decided in the negative, a motion subsequently made " to relieve 
dissenters from the established church from the payment of church- 
rates," was considered to be within the rule, and consequently inad- 
missible, on the ground, that the two propositions, though different 
in form and words, were substantially the same.^ 

2310. When a bill is already pending, and a motion is made for 
leave to introduce a similar bOl, the question to be determined is, 
whether, if the motion should be adopted, it would authorize the 
introduction of a bill substantially the same with that aheady pend- 
ing ; if it would, then the motion is contrary to the rule. 

2311. When it becomes necessary to institute a comparison 
betu^een the different provisions of two bills, which are aheady 
drawn, it may appear, that, although intended for the same pm-pose, 
and consequently " of the same substance," and " of the same 
argument and matter," in one sense, they nevertheless differ so 
essentially in the mode and means, by which that purpose is to be 

1 Hans. (3), 553. 



Chap. XIX.] rule as to the same bill. 895 

effected, as to be in substance different bills. In such a case, the 
judgment of the house against one of the biUs, that is, against 
effecting a particular object in a particular manner, ought not to pre- 
clude it from entertaining the other, which proposes to effect the 
same object in a different manner. Thus, a bill which creates a 
new offence, and punishes it in one manner, ought not to be con- 
sidered as the same in substance with a bill which creates the same 
offence, and punishes it in a different manner. The identity or 
similarity, therefore, which is implied in the rule in its apphcation 
to bills, would be more fuUy expressed, in the following form, 
namely ; that two bills are the same when they have the same pur- 
pose in view, and propose to effect it by the same means, although, 
in point of phraseology, they may be expressed in different terms ; ^ 
and, this, it is apprehended, will be found to be in accordance with 
the practice of both houses. 

2312. It does not seem to be essential to the apphcation of the 
rule, that the proposition aheady passed upon should have received 
the judgment of the house by itself, provided it is distinct from any 
other proposition, wdth which it might have been accompanied ; or 
that the new one should be made by itself, provided it is distinct 
from and independent of any other, in company with which it may 
be brought forwards ; ^ thus, where the house of commons, having 
passed a bill which was rejected by the lords, or rather passed by 
them with amendments to which the commons did not agree, 
inserted the same bill as a proviso in another bill of a different 
character, this proceeding was held to be contrary to the known 
and constant methods of parliament.^ 

2313. The general rule being, as already stated, that no question 
can be a second time moved,*^ upon which the judgment of the 
house has aheady been expressed, it follows, not only that no reso- 
lution or bill can be introduced, which proposes to do what the 
house has declared, shall not be done, but also that no two reso- 
lutions, nor any two bills, contradictory to each other, can be passed 

1 Han?. (1), X. 1344. ever, of a proceeding so contrary to the rules 

2 Hatsell, H. 125, 127 ; Pari. Reg. XXXYI. and methods of pariiament." 

223. ■* The rule, when stated broadly and fully, 

3 Lords' Jour. XV. 90. The house of lords, may be thus expressed, namely: that when 
deeming it necessary nevertheless, (for the the house has already done a particular thing, 
public welfare,) to pass the bill, directed a that thing can neither be undone, nor other- 
special entry to be made in the journal, "for wise done; and that when the house has 
a record to all posterity, that they will not refused to do a particular thing, that thing 
hereafter admit, upon any occasion whatso- cannot be done. 



896 LEaiSLATIYE ASSEMBLIES. [PaRT VIIL 

in the same session ; ^ and, consequently, that no motion or propo- 
sition, preliminary to such contradictory legislation, can oe regularly 
iatroduced.2 

2314. The judgment of one house being obligatory only upon 
itself, and its ow*n members, it follows, that the apphcation of the 
rule in question is confiined to the house in which the previous pro- 
ceeding has taken place, and to the members of that house. Thus, 
if a bUl is pending, or has been rejected in one house, the ^ame biU, 
that is, a bill of the same tenor, may nevertheless be introduced in 
the other ; inasmuch as the latter has not as yet come to any judg- 
ment upon that or a similar bill. If such bill passes in the house 
in which it is begun, it may be sent from that house to the other, 
and so introduced in that house, although a similar bill is there 
pending, or has been passed, or rejected ; because the judgment of 
that house is obhgatory only to prevent the introduction of such a 
bUl by its own members, but not to its introduction from the other 
house, wliich is an independent and coordinate branch. K the 
introduction of a bill from the other house, in this manner, cannot 
be objected to, on the ground of order, so neither can its being pro- 
ceeded upon and passed, ^'hether the house, to which it is sent, 
having already expressed its opinion by rejecting a similar bill, or 
ha^ins a similar bill then tmder consideration, vriR reconsider its 
judgment, and pass the bill thus sent, is a question which does not 
depend upon the order or method of proceeding. 

2315. It is wholly immaterial in what form it is proposed a 
second time to bring forward a question which has aheady been 
decided ; as, for example, it is not allowable to move an amend- 
ment to a pending bill, winch, if adopted, wiH render the bill the 
same with one wliich has already been rejected or passed.^ 



Sectiox II. Of the Application of the E-ulb, tthex leaye has 

BEEX GIYEX OR EEFrSED, OR AN' OrDER MADE OR REJECTED, TO 
PREPARE AXD ERrsG IX A BiLL FOR A PARTICULAR PURPOSE. 

2316. When the judgment of the house has been expressed in 
this form, no motion or order can afteru'ards be made for a similar 
bOl. But, when a biU has thus been authorized, it is competent for 
the house, nevertheless, to discharge the order ; ^ in which case, the 

1 Pari. Reg. XX^^I. 679. ^ Hans. (1), X. 13U. 

« Comm. Jour. XIX. 639. ^ HatseU, H. 133. 



Chap. XIX.] rule as to the same bill. 897 

effect of it is entirely done away with, and a new order may after- 
wards be made in the same or a different form. When a motion 
for leave to bring in a bill has been rejected, the same subject may 
again be brought forward, in a different form ; • as, for example, by 
moving the appointment of a committee to consider the laws relat- 
ing to that subject.^ In this case, however, it wiU stUl be for the 
house to determine, when the contemplated measure is brought 
forward, — either in the committee or the house, — whether it inter- 
feres with the judgment already expressed.^ 



Section IIL Of the Application of the Rule whilst a Bill 

is pending. 

2317. When a biU has been introduced, and is pending, no other 
of the same substance can be moved for or introduced. A bill is 
pending, untU it has been rejected ; or until a negative has been put 
upon some one of the motions necessary to forward it, which is 
equivalent to a rejection, as, for example, that it be read a second 
or a third time, or that it be engrossed or passed ; or, until the 
house, by a direct vote, has declared that it will no longer pro- 
ceed with the bUl, as where it is ordered to be withdrawn or laid 
aside. 

2318. A negative, put upon a motion for proceeding with a bill, 
in pursuance of a previous order, is not equivalent to a rejection ; 
because it leaves the order stUl in force, to be proceeded upon, if 
the house pleases, at some other time. Thus, if a biU is read a first 
time, and a motion made that it be read a second time, which is 
negatived, the bill is as effectually rejected as it could be upon a 
direct motion for that purpose. But, if the motion for second read- 
ing is carried, and a day is then fixed for the second reading, and, 
on that day, a motion for the present reading of the bill is made 
and negatived, this negative is not equivalent to a rejection ; for 
the order, that the bill be read a second time is still in force, and 
the house may proceed upon it at any future time. 

2319. A bill is also considered to be pending, when the proceed- 
ing upon it has been postponed to a day beyond the probable dura- 
tion of the session.^ In this case, the order relative to the biU is, 

' May, 187. and defeating a bill; and it is entirely effect- 

2 Hans. (1), XIIL 765, 769. ual for that purpose, so long as the order for 

* This is a mode, more frequently adopted postponement remains in force. But it seems, 

than any other, for expressing opposition to that this order may, at any time, be dis- 



898 LEGISLATIVE ASSEMBLIES. [PaRT VIU 

that it be read the second, or thhd time, etc., on a day fixed, on 
which the house may, possibly, though it is not likely to be, sitting. 
If the postponement should be to a day beyond the possibility of 
the continuance of the session, — as for example, to a day beyond 
the term of the legal existence of the parhament, — such a post- 
ponement could hardly be considered in any other light than as a 
rejection. 

2320. When it becomes desirable or necessary, as frequently 
happens, to introduce a new biU of the same substance with, and 
in place of, one aheady pending, this can only be done by withdraw- 
ing the latter, if it is a bill of the house in which it is pending, or 
by laying it aside, if it originated in the other house. These pro- 
ceedings will be fuUy described hereafter. 

Section IV. Of the Application op the Rule when a Bill 

HAS been rejected. 

2321. When a bUl has been rejected in any of its stages, in the 
house in which it originated, the same bUl cannot be again intro- 
duced in the same house ; but a new biU, which really presents a 
different question, or the same question in a modified form, how- 
ever slight the difference or modification may be, is not objection- 
able in point of order. Hence, in matters of considerable importance, 
in reference to which the opinion of the house has undergone a 
change, some trifling variation in the question has. been deemed 
sufficient to prevent the operation of the rule.^ 

2322. When a bill which has been passed in one house, and sent 
to the other, is there rejected, it is according to the established par- 
liamentary usage, " that a new bill of the same matter may be 
drawn and begun again in that house whereunto it was sent ; " ^ and 
such bill, being passed in the house in which it is begun, and sent 
to the other, may be there proceeded upon and passed.^ The rule, 
as thus stated, seems to imply that the new bill differs from the 
old one, so far at least as to be free from the objections which were 

charged; and, when discharged, although it " skins and tanned hides " in the place of the 

cannot be renewed for an earlier day, the biU word " leather," of which, Mr. Speaker 0ns- 

•may be withdrawn, and a new one ordered low remarks, that " the method here spoken 

and presented, and forwarded in the ordinary of to recover the loss of the former question 

manner. was unparliamentary, and dangerous, and 

" 1 HatseU, H. 125, 128, and n. Bishop Bur- mean too." 

net (History of His Own Times, vol. VI. p. 31, 2 Lords' Jour. H. 435. 

2d Oxford Ed. ) relates an instance of the eva- ^ HatseU, H. 125, 12?. 

sion of this role, by substituting the words 



Chap. XIX.] rule as to the same bill. 899 

fatal to the latter. But there is a class of cases, to which alone the 
rule seems to have any practical application, in which tke new biU 
would be free from the objections of the first, without in the slight- 
est respect differing from it in terms, namely, where the former 
contains provisions, which, as coming from the house, in which it 
originated, are in breach of the privileges of the other. Thus, for 
example, if the lords pass a bill containing clauses imposing a 
charge of some sort upon the people, and send it to the commons, 
the bill is objectionable in the latter house, and cannot be there 
allowed to proceed, consistently with the privileges of that house ; 
but a new biU, containing precisely the same provisions, originating 
in the house of commons, is entirely unobjectionable. According 
to the present practice, a bill sent from one house to the other, 
which is contrary to the privileges of the latter, is not there rejected ; 
but is laid aside, and another biU precisely similar in its terms 
ordered to be brought in, which latter is passed and sent to the 
other house as an original biU.^ 



Section V. Of the Application of the Rule when a Bill has 

been passed. 

2323. When a biU has been passed in one branch, the rule is 
equally peremptory, that no similar bill can be afterwards intro- 
duced.'-^ In practice, however, when it has been ascertained that a 
bill, which has been passed in one house and sent to the other, is 
there unacceptable in some particulars, a new biU may be introduced 
and passed in the house in which it originated, mth such variations 
from the first bill, as to make it acceptable to the other house. This 
practice appears to be most frequently resorted to in regard to bills, 
in which the objectionable parts cannot be amended, without in- 
fringing upon the privileges of the house from Avhich the biU. is sent. 
The following is an instance of this sort. A bill being passed in 
the house of commons and sent to the house of lords, is there pro- 
ceeded with, and committed, in the regular course of proceeding. 
The committee report it with amendments imposing rates, tolls, or 
other charges upon the people, which the house of lords cannot 
agree to without infringing upon the privilege of the commons ; and 
as they cannot agree to the bill without the amendments, the bill is 

1 May, 238. containing tlie provisions of a bill that ha« 

2 Hats, n 125, 127. But this rule does not passed. Reg. of Deb. IV Part 1, 631. 
gecm to apply to the case of an amendment 



900 LEGISLATIVE ASSEMBLIES. [PaET VIII. 

accordingly dropped, that is, it is no further proceeded v^ith. In 
tliis state of things, the commons appoint a committee to inspect 
the lords' journals, and to report therefrom the proceedings of that 
house upon the bill in question. On the report of the committee, 
if the amendments reported in the lords are acceptable, the com- 
mons order another bill to be brought in similar to the first, but 
with its pro\T.sions so far altered as to conform to the amendments 
proposed in the lords. This bill is, of coui'se, acceptable to both 
houses.^ 

2324. In one case, in which the house of commons ordered that 
leave be given for the introduction of a biH bearing the same title 
with one which had aheady passed, and been sent to the lords, an 
entry was made in the journal of the reasons, which induced the 
house to give leave for bringing in the ne-w biU, namely, that the 
house ■^'ere informed by a member in his place, that the former bill 
had been rejected in the house of lords, on account of its containing 
multifarious matters.^ 

2325. AVhen a bill has passed in both branches, it is a rule of 
parliament, that no other can be introduced into either, during the 
same session, which has for its object to repeal or amend the former. 
This rule was considered so imperative, that in 1721, a prorogation 
of parliament took place for two days, in order that a bill relating 
to the South Sea Company might be passed, in which it was pro- 
posed to insert provisions contradictory to clauses contained in an 
act of the same session.^ In order to avoid the embarrassment 
v,'hich might otherwise result from the application of this rule, it 
became and ■^^'as the common practice until the year 1850, to 
insert in aU bills, particularly in those of a temporaiy policy, and in 
tax bills, a clause providing that they might be amended or repealed 
by any act to be passed in the same session.* But this clause, 
since the year above mentioned, has become unnecessary, in conse- 
quence of the 13 and 14 Vict. c. 1, which pro^^.des, " that every 
act may be altered, amended, or repealed, in the same session of 
parliament, any law or usage to the contrary notwithstanding." 

1 !Mav, 237. Tial a fonner act ; or to rectify mistakes in, 

- Comm. Jour. XXXITI. 726. continne in force, or to enlarge the time for 

3 Comm. Jonr. XIX. 639. the execution of, a former act. Jefferson's 

*MaT, 239; Hats. II. 129, 1.33, n. The Manual, Sec. XLIV. It is doubtful whether 

rule stated in the text, never, it seems, applied the rule ever prevailed in this country. See 

to prevent the passing of an explanatory act; J. of C. ATI. 417; J. of H. I. 118, 119; J. ol 

or to a bill to enforce, and make more effect- S. I. 50, 91. 



Chap. XIX.] rule as to the same bill. 901 



Section VI. Op the Application of the Rule to the different 
Stages of a Bill and to Amendments. 

2326. It is a general rule of parliamentary practice, that, when- 
ever the course of proceeding requires the house to come to several 
successive resolutions, each one is to be considered and decided by 
itself, and without reference to any step previously taken. The 
advantage of this method is, that it affords the house an opportu- 
nity to revise and reconsider its prior determinations. In the pass- 
ing of bills, — the most important of the functions of a legislative 
assembly, — these different steps or stages are more numerous than 
with reference to any other proceeding, and every stage of a bUl 
submits the whole and every part of it to the opinion of the house. 
It is the operation of this rule, cliiefly, that prevents the inconven- 
iences which would otherwise inevitably result from a strict appli- 
cation of the principle, which is the subject of the present chapter. 

2327. The rule stated in the preceding paragraph applies as well 
to the preliminary proceedings, as to the several stages which occur 
in the regular progress of a bill. Thus, when the house has come 
to a resolution, which would be wholly ineffectual, unless it were 
made the foundation of a bill, the motion for leave to bring in 
a bill thereupon may, nevertheless, be rejected ; ^ and, in Hke man- 
ner, if leave be granted, the bill may be refused, when presented ; 
or, if received, the house may negative the motion that it be read. 
So, when a bill has commenced its regular progress, a negative 
may be put upon any one of the successive steps or stages through 
which it ought to pass. 

2328. The rule also applies to the amendments, which may be 
made at the different stages of a bill ; at each of which, " every 
part of the bill is open for amendment, either for insertion or omis- 
sion, whether the same amendment has been, in a former stage, ac- 
cepted or rejected." ^ The stages at which amendments are usually 
made, are, 1, in the committee (this stage being renewed either in 
whole or in part, as often as a bill is recommitted) ; 2, on, that is, 
after considering the report ; and, 3, on the third reading. In the 
committee, those amendments only can be made, which are consist- 
ent with the title, or within the instructions that may have been pre- 
viously given by the house ; but within these Umits, amendments 
may be made contradictory of previous resolutions or votes ; on 

1 Coram. Jour. LXXXVHL 317, 329. 2 HatseU, II. 135. 

76 



902 LE&ISLATIYE ASSEMBLIES. [PaET VIIL 

the report, the amendments of the committee may be negatived, 
amendments rejected by the committee may be adopted, and new 
amendments may be made ; and, on the thkd reading, clauses may 
be added, or amendments made, which have before been rejected, 
and clauses may be left out of the bill, which have been inserted 
at any previous stage. 

2329. It is hardly necessary to remark, that amendments between 
the houses stand upon the same footing ; not only for the reason 
abeady suggested, but also for the further reason, that the votes or 
judgments of one house are not binding upon the other. 



CHAPTER TWENTIETH. 

or so:\ie particular proceedings, with referexce to bills, 
which are out oe the ordinary course. 

Section L "Withdeawal. 

2830. The rules of parhamentary practice, which preclude the 
introduction of a second bill, whilst one is already pending vidth 
the same title, or after one of the same title or tenor has been 
passed or rejected, sometimes make it expedient that a bill should 
be -^dthdi'awn, in the course of its progress, in order to the intro- 
duction of a new one. The effect of this proceeding is, that a new 
bill may then be introduced, in the same manner as if the former 
had never been before the house. The occasions on which this 
proceeding takes place, occur, first, when a biU is so defective or 
objectionable in point of form, or the proceedings in reference to it 
have been so irregular, that it cannot be allowed to proceed further, 
consistently with the orders of the house ; and, second, when, for 
various reasons, it becomes expedient or desh'able, in the opinion 
of the parties, if it be a private biU, or of the Mends of it in the 
house, if it be a public one, that it should be Vvdthdrawn.^ 

1 It seems, according to the practice in our when the bill is first offei-ed to be presented, 

legislative assemblies, that those objections, in and cannot be made afterguards. See ante, 

point of fonn, which in parliament are fatal, § 2115, and J. of H. 3'2d Cong. 1st Sess. 785; 

Trhen taken notice of, and lead to the with- Cong. Globe, XXIII. 312. See Same, XXL 

drawal of the bill, are, in this countiy, consid- 807; Same, XXTTT. 313. 
ered as waived, unless taken advantage ot 



Chap. XX.] withdrawal of bill. 903 

2331. When, in the course of the proceedings upon a bill, it be- 
comes apparent, that its further progress would be inconsistent with 
the orders of the house, the bill must be abandoned, unless it 
should be allowed to proceed by the unanimous consent of the 
house. When a case of this kind occurs, and the objection is 
pointed out, either by the speaker, or some member, or is discovered 
by the parties, it is usually so obvious, that the effect of it is admit- 
ted at once, and the bill immediately abandoned, or measures taken 
to withdraw it, for the purpose of presenting or introducing a new 
one. But, if the objection is not apparent, or the friends of the bill 
persist in carrying it forward, the question may be settled either by 
a direct motion that the biU be withdrawn, or by a motion in some 
one of the common forms, to postpone it to a day beyond the ses- 
sion, or by objecting the irregularity to any of the motions for pro- 
ceeding with the bill. 

2332. The principal grounds of objection to proceeding with a 
bill, as against order, relate : 1, to its form ; as where a bill contains 
no enacting words ; where it contains interlineations or erasures;^ 
where parts of a bill which should have been left blank are filled 
up ; ^ where commissioners' names are not inserted as required by 
the orders of the house ; ^ where a bill is not prepared according to 
the standing orders relating to the subject;^ 2, to its substance; as 
where the title of a biU varies frOm the order for preparing and 
bringing it in ; ^ where a bill varies from the order, or is not proper- 
ly prepared , ^ where a bill contains provisions not authorized by the 
order," or not included in the petition ^ or resolutions ^ on which it 
is founded ; 3, to the manner of its introduction ; as where a bill is 
presented by a member not named in the order of leave ; ^'^ where a 
private bill is introduced on leave, instead of being brought in on 
petition ; " where a biU contains provisions which should have been 

1 Comm.. Tour. XXXVL 703; Sair.e, XLIIL 327, 359: Same, LVIII. 309; Same, LXIX. 
467, 468; Same, XXIX. 926; Same, XXXIIL 266, 314; Same, LXX. 263. 

227, 674; Same, LVII. 47. ' Comm. Jour. XLVL 657; Same, L. 374; 

2 Comm. Jour, XXX VI. 692; Same, XVIIL Same, LL 609; Same, XLII. 528, 543; Same, 
426; Same, XIX. 115; Same, XXVI. 130, 145; XLIV. 514; Same, XXIL 414, 443; Same, 
Same, XXXIII. 674; Same, LXVIL 511; XXXII. 843; Same, XXXIII. 492,554, 595; 
Same, XX. 779. Same, LVIL 409, 504, 521. 

3 Comm. Jour, LI. 495; Same, LV. 533, 555, 8 Comm. Jour. LV. 417; Same, XLIL 705; 
627; Same, XLVIII. 308, 346. Same, XXIX. 67; Same, XXXI. 607; Same, 

* Comm. Jour. XXXVIIL 925, 938; Same, XXXIL 843; Same, XXXIIL 210, 211; Same, 

LXX. 209. LXIX. 230, 

» Comm. Jcjur. XLVIII. 341, 361 ; Same, » Comm. Jour. XXII. 104. 

LTIL 696; Same, LVIIL 300; Same, LXXL lo Comm. Jour. XXXIIL 255. 

252; Same, LXX. 265. " Comm, Jour. LXX, 46; Lords' Jour, XL. 

8 Coram. Jour. XLI. 825, 827; Same, XXIIL 576. 
66. 67, 90; Same, LVII. 467; Same, XXXIL 



904 LEGISLATIVE ASSEMBLIES. [PaET VIIL 

previously considered in a committee of the whole ; ^ and, 4, to 
the proceedings in relation to it; as v^here printed copies of a bill 
have not been delivered, as required by the orders of the house, be- 
fore presenting it ; ^ where the printed copies dehvered do not con- 
tain proper blanks ; ^ where a bill, to which the consent of parties 
is necessary, varies from the copy to which the parties have signi- 
fied their consent.* 

2333. There is another class of cases, in which, although bills 
are not objectionable as against order, it is nevertheless deemed ex- 
pedient or desirable, for various reasons, either of a public or pri- 
vate nature, that they should be withdrawn ; as, where it appears 
that a bill, in its present form, wiW. not effectually answer the pur- 
poses for which it was intended ; ^ where it is apparent from the 
great number of alterations and amendments, reported by the com- 
mittee on the bill, ■*'hat it will be for the convenience of the house, 
that the bill should be mthdrawn, and another presented in its 
place ; ^ where the house is informed that several material altera- 
tions are necessary to be made in the bUl, which cannot be made or 
inserted therein, so as to correspond with its present provisions, in 
the form in which the bill is drawn ; ' where an estimate on which 

'the bill is founded is discovered to be inaccurate ; ^ where the par- 
ties to private bUls desire, for particular reasons, to withdraw the 
same ; ^ where the second reading of a bill being deferred to a dis- 
tant day, it afterwards appeared that to put it off for so long a time 
might be attended with great pubhc inconvenience, and an earher 
day could not be appointed consistently with the orders of the 
house ; '^^ where, in consequence of the alterations and amendments 
to be proposed to a bill, it wiU be for the convenience of the house 
to have it wthdrawn, and a new one presented in its place.^^ 

2334. The ^\dthdrawal of a bill may take place, at any time, in 
the course of its progress, whenever the informality is discovered, 
or the reason becomes manifest, on account of which it is expe- 
dient or necessary to withdraw it. When a bill has been proceeded 
with, in regular course, to any stage, but has not been made the 



1 Lords' Jour. LV. 396. « Comm. Jour. XL. 905, 914. 

2 Comm. Jour. LXXIV. 235. i Comm. Jour. L. 229; Same, XLL 281, 282, 

3 Lords' Jour. XLII. 528, 543. 637; Same, XXXIV. 201, 268; Same, LX. 

4 Lords" Jour. XXXV. 488, 489. 165 ; Same, LXIV. 95. 

s Comm. Jour. XLVIL 611, 714 ; Same, » Comm. Jour. LIII. 525. 
XXXVL 479; Same, XLL 739; Same, XXXIL » Comm. Jour. LIV. 551; Same, LIX 227 

815, 818; Same, XXX!II. 28; Same, LVIL Same, LXXIV. 235. 
388, 467; Same, LVIIL 620; Same, LXXIIL " Comm. Jour. XXXIIL 46. 
850, 397. " Comm. Jour. LVL 267, 560. 



Chap. XX.] withdrawal of bill. 905 

subject of an order which is not yet executed, as, for example, 
where it has been received, but has not been ordered to be read the 
first time ; ^ or has been read the first time, without being ordered to 
be read the second time ;'-^ a motion for the withdrawal of the bill 
may be made directly and at any time, without any preliminary 
proceeding. Where a bill has been made the subject of an order 
which is not yet executed, as, for example, where ^a bill has been 
read a first time, and has been ordered to be read a second time, 
but has not yet been read in pursuance of the order,'^ a motion to 
withdraw it may be made, in like manner, at any time, but it must 
regularly be preceded by a discharge of the order. If a time has 
also been assigned for the execution of the order, aS where a bill 
has been ordered to be read a second time, on a day named, both 
orders, — for ihe second reading, and for the time assigned, if the 
subjects of separate orders, — must first he discharged.* 

2335. When a bill, having been proceeded with, has been made 
the subject of an order, for a particular day, the order is an order 
of the day for that day ; and when read as such, the motion for 
withdrawal may be made ; but, in this case, it is necessary, in the 
first place, that the unexecuted orders, whatever they may be, as, 
for example, for the second reading,^ commitment,^ or third read- 
ing,'' on that day, should be discharged ; and, secondly, that any 
pending motion for proceeding with the order, as, that the bill be 
now read the third time,^ or that the speaker do now leave the 
chair, should be previously withdrawn ; ^ if not withdrawn, the 
withdrawal of the bill may be moved as an amendment. ^'^ 

2336. When a bill has been committed to a select committee, it 
may be withdrawn at any time afterw'^ards, on motion, the order for 
commitment being previously discharged ; ^^ or, upon its being as- 
certained by the committee, that the bill ought to be withdrawn, 
the chairman may be directed to inform the house of the circum- 
stances, and to move that the bill be withdrawn.^^ When a bill is 
under consideration in a committee of the whole, and it becomes 



1 Comm. Jour. XLVIH. 341, 361; Same, « Comm. Jour. XXXH. 843; Same, LIV. 
LXIV. 198. 551. 

2 Comm. Jour. XVIH. 426 ; Same, XIX. » Comra. Jour. LVL 267, 521. 

115; Same, XX. 779; Same, XXI. 248; ' Comm. Jour. LVH. 388; Same, LXX. 355. 

Same, XXIL 414, 443; Same, XLIV. 514. « Comm. Jour. LXX. 355. 

3 Comm. Jour. XXXVL 258, 703; Same, » Comm. Jour. LVL 409. 
XLVm. 308, 346; Same, LL 495; Same, LV. i" Comm. Jour. XXXV. 488, 489. 

533, 555, 627. n Comm. Jour. XXVL 692 , Same, XLIL 

* Comm. Jour. LVL 504. 528, 543; Same, LIX. 227, on. 

12 Comm. Jour. XLVH. 714. 

76* 



906 LEGISLATIYE ASSEMELIE3. [PaUT VIIL 

apparent to the committee that the bill ought not to proceed, the 
committee may thereupon report progress, and the proper motions 
be made in the house for the ^Adthdra-^'al of the bill.^ 

2337. The \\4thdrawal of a bill usually occurs upon the state- 
ment of a member, calling the attention of the house to the cir- 
cumstances ; sometimes upon the report of the committee on the 
bill ; - and sometimes also upon the petition of the parties in- 
terested ; -5 but in whatever mode it takes place, the reason for the 
proceeding is generally entered on the journals; and when the 
ground for T\-ithdrawal is suggested by a member, the entiy is, "that 
notice being taken," or " the house being informed that," &c. 

2338. Clauses offered to be added to a bill by way of amend- 
ment, or as riders, may be Vv^.thdTa^^Tl, in the same manner as the 
bill itself, at any time before they have been made a part of it by 
the vote of the house. K.offered on the report, and made a part of 
the bill before the third reading, they may be left out in that stage, 
by way of amendment; but, if offered and annexed to the bill, 
after the third reading, they cannot be withdrawn, nor, as that is 
the last stage, can they be left out by way of amendment. 

2339. A motion for the withdi-awal of a bill is sometimes ex- 
pressed in the form of a request, that leave be granted for that pur- 
pose, sometimes in the form merely that the biU be withdrawn. 
The former seems most proper, vi^hen the bill is private, the latter 
when it is public, in its character ; but the effect is the same in 
both. The motion to ^\n.thdraw a biU (unlike a motion for leave to 
withdrav^^ a motion, which cannot be debated, and requires the 
unanimous consent of the house) is made, debated, and decided 
upon, like other motions made in the progress of a biU. 

2340. When leave is given, or an order made, for the withdrawal, 
it is usually followed by a motion, which is seldom refused, that 
leave be granted for the introduction of a new or proper one. 
Where leave is thus granted for a new bill, the original order of 
leave remains in force, and is the authority upon which the biU is 
presented. It is not unusual, however, to name other members, or 
to add members to those originally named, for the purpose of pre- 
senting the bill. Where a biU, which is ^'ithdi'a"^"n, T\^as not intro- 
duced in pursuance of an order of leave, but in some other mode, 
as, for example, by the report of a committee, or from the other 
house, the house can, of course, direct the introduction of a new 
one in such manner as they may think proper. 

1 Conim. Jom-. LXVH. 511. s Comm. Jour. LIX. 227 ; Same, LXXIV 

.% Comm. Jour. XLVn. 714. 235. 



Chap. XX.] rejection of bill. 907 



Section II. Rejection. 

2341. Opposition to a bill may be manifested in several ways ; 
as by postponing the proceeding upon it to a day beyond the ses- 
sion, which is the usual mode ; or by putting a negative upon any 
of the motions which may be made to forward it in the regular 
course of business, which is a mode frequently adopted ; or by a 
direct motion to reject the bill altogether, which, as it implies some 
degree of feeling on the part of the house,i is not so common, at 
least, in modern times. Before the revolution, and for some time 
afterwards, it was not uncommon to reject bills ; but, for the last 
half century and more, the journals of the commons record only 
two instances of this proceeding, though in the other house the 
practice has been more general.^ 

2342. A direct motion to reject may be made at any regular 
stage, or at any interval in the progress of a bill ; as, for example, 
upon being refused a first reading,'^ immediately after being read 
a first time,* upon being refused a second reading,^ upon being 
refused a second reading at the time ordered therefor,*^ immediately 
after second reading and hearing counsel," upon being refused to 
be committed,*^ upon being refused to be committed at the time 
ordered therefor,^ upon being reported,i° after considering the re- 
port,^! after being ordered to a third reading.^'^ 

2343. The motion is usually made, as appears by the above ex- 
amples, either immediately after some step in the regular progi-ess 
has been taken, or after a negative has been put upon some one of 
the proper motions for forwarding the bill, at the time assigned for 
the purpose ; but it may also be made during the interval between 
any two stages, as for example, when a bill has been read a second 

1 In the reign of Elizabeth, it appears from his word, for he tossed them into the very 

one entrj' in the journal, that a bill was re- middle of the house." 

jected and ordered to be torn, Comm. Jour. I. ^ Muj-, 354. 

63; and in the year 1620, a bill, on the motion ^ Comm. Jour. XXII. 138 ; Lords' Jcnr. 

of Sir Edward Coke, " was rejected and_torn XXXVIIL 507. 

without one negative," Comm. Jour. I. 560. * Lords' Jour. XX. 637. 

The following extract from the Pari. Deb. VL s Lords' Jour. XXIV. 23. 

248, shows that such manifestations of feel- « Lords' Jour. XXXV. 333. 

ing do not belong exclusively to an early ' Lords' Jour. XLI. 485, 487. 

period: "The speaker (Sir Fletcher Norton) » Lords' Jour. XXXVIIL 488. 

protested, before he put the question on agree- » Lords' .Jour. XXXIIL 519, 520. 

ing with the lords in their amendment to the i" Lords' Jour. XLIL 270, 272, 329. 

corn and game bills, that he was sincerely for ii Lords' Jour. XXXVIIL 588. 

throwing them both over the table ; and, 12 Lords' Jour. XXXVUI. 502. 
yheu they were rejected, he was as good as 



908 LEGISLATHTE ASSEMBLIES. [PaET YIIl. 

time and ordered to be conunitted on a day subsequent, it may be 
rejected on any intermediate day, the order for commitnient being 
first read, on motion, and discharged ;i and so, on the order of 
the day being read for proceeding with a bill, the motion to reject 
may be made at once, instead of a motion to forward the bill, as, 
for example, on reading the order of the day for the third reading 
of a bill, a motion may be immediately made to reject it.^ 

2344. The rejection of a bill, though implying a strong expres- 
sion of opinion, does not differ materially, as to its practical effect, 
from that of any of the other motions by which the opinion of the 
house is adversely expressed. Whilst a bill is pending, — and it 
is in a parliamentary sense pending although postponed in the 
usual manner, — no other which is the same in substance can be 
introduced during the same session. The same result follows from 
the rejection of a bill. 

Sectiox IIL LATiiSrG aside. 

2345. A mode of proceeding, somewhat similar m its operation, 
as bet^''een the two houses, to the withdrawal of a bill, in reference 
to the petitioners for it, or parties interested in it, occurs when a 
bin is laid aside. This disposition of a biU takes place, when one 
house sends a biQ to the other, which that house cannot proceed 
upon, consistently with the preservation of its pri"\Tleges, but w^hich 
it is nevertheless willing to pass. Thus, if the house of lords passes 
a biU and sends it to the house of commons, with clauses in it 
which ought to originate in the latter, the biU is in violation of the 
pri^sileges of the commons, and cannot be allowed to proceed there 
as a biU from the lords. But, if it contains nothing objectionable 
in other respects, and the house of commons would be willing to 
pass it, if it had originated in that house, the course of proceeding 
is, to order the biU to be laid aside, — equivalent to a withdra"wal, 
— and to order another precisely similar to be brought in. The 
latter is then proceeded with and passed, \^dthout objection, — hav- 
ing originated in the commons, — and is sent to the house of lords 
to be there agreed to, as if the other biU had never had any exist- 
ence. This course is also adopted, when a bill from one house is 
passed in the other ^\dth amendments, which the former cannot 
entertain consistently wdth its ovvTI privileges, as coming from the 
latter, but to which it has no other objection. In such a case, the 

1 Lords' Jour. XXXVm. 146, 262. 2 Lords' Jour. XXXVIIL 502. 



Chap. XX.] DROPPiNa of bill. 909 

hquse to which the bill is sent, orders it to be laid aside, and 
another embodying the amendments to be prepared and brought in, 
which is proceeded with and passed, as an original bill of the latter 
house.i 

2346. A bm may be thus laid aside immediately upon its being 
introduced, or after it has been proceeded upon, and at any stage, 
or in any interval, of its progress ; as, for example, after being or- 
dered to a second reading,'^ or at the time appointed therefor,^ or 
upon the report of the committee upon it ; * and, in two instances, 
it appears from the journals, that the motion to lay aside was 
allowed to supersede a motion that the bill be now read a second 
time, but the propriety of this course, supposing the entry in the 
jom-nals accurate, may well be questioned.^ 

2347. A proceeding not unlike the laying aside of a bill, is to 
resolve to proceed no further with it, without taking any measures 
for the introduction of a new one. Thus, where a bill from the 
commons was twice read in the lords, and committed, and the 
committee reported, "that they had gone through the bill and 
made some amendments thereunto ; but, upon consideration of the 
whole matter, find several things contained in the said bill unpar- 
liamentary and unprecedented, intrenching on the rights and privi- 
leges, and derogatory to the honor of the house, and therefore did 
not think fit to proceed any further in the bill, without having the 
direction of the house ; " it was thereupon ordered, " that this 
house will proceed no further on consideration of the said bill." ^ 

Section IV. Dropping. 

2348. When any of the regular proceedings upon a bill has been 
assigned for a particular day, and thus made an order of the day 
for that day, as, for example, when a bUl has been read the first 
time, and ordered to be read a second time on a given day, if any 
thing occurs to prevent the order from being proceeded with on that 
day, it becomes what is called a dropped order. The most com- 
mon occasion on which an order drops, is when the house is ad- 
journed by the speaker for want of forty members. The same 
thing occurs when, for any other cause, the orders of the day are 
not proceeded with, before the adjournment of the house for the 

1 May, 238. ^ Comm. Jour. XXVI. 758; Same, XXIX. 

2 Comm. Jour. XXXIV. 745, 746. 274. 

3 Comm. Jour. XXXIV. 745, 746. « Comm. Jour. XXIIL 232. 
• Lords' Jour. XXIII. 232. 



910 LEGISLATIVE ASSEMBLIES. [PaRT VIIL 

day. Sometimes an order is dropped, in consequence of the ad- 
journment of the house over the day assigned. 

2349. In all these cases, the course of proceeding is to take up 
the business precisely at the point ^A^here it was left, or to renew 
the order for a subsequent day. An order may also be dropped, in 
consequence of no motion being made for the reading of it, or if 
read, of no motion being made for proceeding with it. This is a 
mode usually resorted to, when the parties to a private bill, or the 
members interested in and having the charge of a public one, de- 
sire to abandon it ; they can effect their object by simply refraining 
from making the motions which are necessary to carry it forward. 
Proceedings thus abandoned are seldom renewed ; instances, how- 
ever, have occurred, in which public or private bills, which have 
been dropped by their original promoters, in consequence of amend- 
ments being introduced by their opponents, have been taken up and 
carried forward by other members.^ 



CHAPTEE TWENTY-FIRST. 

or COMMUNICATIONS BETWEEN THE TWO HOUSES EELATIVE TO 
THE EEASONS OE GEOUNDS FOE THE PASSING OF BILLS. 

2350. When one house passes a bill and sends it to the other, it 
offers no inducements or reasons for passing the bill, in order to ob- 
tain the concurrence of the latter, other than the statements of such 
grounds or reasons which appear in the preamble. The facts or 
reasons there stated, when they are of a pubhc nature, are equally 
in the possession of the house to which the bill is sent ; and the 
freedom and independence of each branch require that these facts 
and reasons should be left to exert their proper influence, without 
fmrther interference. 

2351. When a bill has passed in one house, and been sent to 
the other, the provisions of which bill have been grounded, not 
upon general notoriety, but upon special facts that are necessary to 
be proved by evidence, it is usual for the house to which the bill is 
sent, at any stage of the proceedings, when it thinks proper, either 
by a message, or at a conference, (usually the former,) to ask infor- 

1 May, 4S8. 



Chap. XXL] grounds of passing bills. 911 

mation of the grounds and evidence upon which the bill, or some 
particular clause of it,^ has passed; and this evidence, whether 
arising out of papers, or from the examination of witnesses, is, in 
general, immediately communicated.^ 

2352. The right to request, and the obligation to furnish, the 
grounds and evidence upon which a bill is passed, are restricted to 
those grounds upon which the passing of the bill is placed by the 
house in which it originates, that is, to the facts recapitulated or 
documents mentioned in the preamble, and on which the bill is 
avowedly founded.-^ When, however, a biU is judicial in its nature, 
as affecting the legal rights or private property of individuals, the 
evidence on which it is founded may be requested, and ought to 
be communicated, even when the bill itself contains no statement 
of the facts, or states facts the evidence of -which does not appear 
in the preamble.* 

2353. In order to obtain the desired information, a message is to 
be sent to the house by which the bill is passed, requesting that 
house to communicate to the other the evidence on which the for- 
mer passed a bill entitled, etc., or to communicate a certain docu- 
ment, or papers, particularly specified in the message. On receiv- 
ing this message, the house may proceed at once to consider it, in 
which case, if there is no objection to granting the request, the 
practice is, to send the papers or documents by* the messengers; or, 
a time may be assigned for the consideration of the message, in 
which case, the messengers are dismissed with the answer, that the 
house will send an answer by messengers of their own. 

2354. If the house, of which the request is made, declines acced- 
ing to it, on the ground that the case is not one in which it is the 
right of the other house to request information, the answer is, that 
they have taken the message into consideration, but conceive that 
it has not been the practice of parliament, for the house making 
the request to desire the evidence upon which the other has passed 
bills of this nature, and that they think this reason sufficient for 
not giving any further answer. 

2355. If this answer should not prove satisfactory, the other 
house renews the request, declaring at the same time, that it is ac- 
cording to the practice of parKament, to which the former replies, 
stating more fully the reasons for declining ; as, for example, 
where the lords requested the commons to communicate the evi- 

1 Comm. Jour. XXXV. 392. s Parf. Reg. (2), XX. 247, 248. 

s Hats. HI. 70, 71. * Hats. HI. 70, note. 



912 LEGISL.\TITE ASSEMBLIES. [PaET VIIL 

dence, on which they passed a bill for settling an annuity on the 
dul':e of Athol, to which the commons declined to accede, and the 
lords renewed the request, the commons replied, that as the nature 
of the biU mentioned in the message ^Tas for the express purpose 
of making a disposition of pubhc money, the commons conceive 
that the claim asserted in the message is not warranted by the 
practice of parliament, and doth intrench upon the rights and pri\d- 
leges of the coiumons, iiom which they can never depart.^ 

2356. Or the reason may be stated at once, in the first instance ; 
as, for example, where the house of commons, in answer to a re- 
quest from the house of lords, for the information upon which the 
former had passed a bill, returned an answer, that they conceive it 
has not been the practice of parliament for either house to desire 
of the other the information on which they have proceeded in pass- 
ing any bill, except where such information has related to facta 
stated in such biE as the ground and foundation thereof; and that 
the commons think this reason sufficient for not gi^dng, at this time, 
any further answer to the message.- 

2357. In the cases above alluded to, the communications were 
aU made by message. It would seem, however, to be more conso- 
nant with the usages of parHament, that, ^"here the communica- 
tion is for any purpose beyond the merely making or granting the 
request, especially where the request is declined for reasons stated, 
it ought to be made by means of and at a conference. 

2358. The evidence, thus desired by the one house of the other, 
usually exists in a form in which it can be at once communicated, 
as, for example, where the testimony of T\dtnesses has been taken 
by a committee, and the minutes of it reported and printed ; but, 
where this is not the case, the course is to refer it to a committee to 
state the matters-of-fact. Thus, where the commons passed a bill, 
which was sent to the lords, and there read a first and second time, 
and committed, the lords informed the commons, "that the matters- 
of-fact suggested in the said bill as the ground and foundation upon 
^'hich it seems to have proceeded, in the house of commons, so far 
as relates to certain persons therein named, not appearing suffi- 
ciently before the lords," they desired the assistance of the com- 
mons, in order to have the state of the said matters-of-fact more 
fully laid before them. The commons thereupon appointed such 
members as were of the committee of secrecy, by "w^hom the gen- 
eral subject had been investigated, a committee to state those mat- 

1 Comm. Jour. LX 162, 471, 497. ^ Comm. Jour. XLI. 842, 847. 



ChAI'. XXL] GROUNDS OF PASSING BILLS. 913 

ters-of-fact, upon which the provisions were grounded, which 
related to the persons in question. The committee made a state- 
ment accordingly, which was delivered to the lords, agreeably to 
their request, at a conference.^ 

2359. In order to determine upon the particular documents or 
papers to request the communication of, the two houses proceed 
differently. The votes of the commons being printed from day to 
day, the lords may have recourse to them, and send for such papers 
as they read of therein; but the votes of the lords not being 
printed, and the commons consequently having no such means of 
information, their only regular course is to appoint a committee to 
search the lords' journals,^ which are open to inspection as public 
records, and, upon the report of the committee, to send for such 
papers and documents as they think proper.-^ 

2360. It is not regular for either house to proceed further than to 
request, or to communicate, the grounds and evidence upon which 
a biU has passed ; to ask why the house, where the bill took its 
rise, passed it in such or such a manner, or to acquaint the house 
to which it is sent, that it has passed unanimously,^ are objectiona- 
ble proceedings. It has not, however, been unusual, for either 
house to remind the other of a biU, which, from its importance, has 
appeared to deserve greater despatch, than the house to which it 
was sent seemed inclined to give it.'^ 

2361. There is one exception to this rule, of those bills, which, 
by the custom of parliament, must originate in the one or the other, 
and not indifferently in either, of the two houses ; as, for example, 
money bills, or biUs for the expenditure of public money, '^ which 
can only originate in the house of commons. In the case of such 
bills, or clauses of a similar character in other bills, it is not accord- 
ing to the custom of parliament, for the house which passes the 
bill, although sometimes requested by the other, to communicate 
the grounds and evidence on which they are passed." 

2362. As one house, when it passes a bill, and sends it to the 
other, gives no reasons, nor can be required to give any. except 
what appear on the face of the bill ; so, neither does the house 
which amends a biU give any reason for its amendment, nor can 
properly be required to give any, — every amendment being sup- 

1 Comm. Jour. XIX. 630, 631; Hatsell, IV. ^ Hatsell, III. 143, 144, 145. 

13, and note. * See Comm. Jour. XVIII. 625, 626. 

2 The minutes of the proceedings in the ^ Hatsell, III. 71. 

lords are now published from day to day, but * Comm. Jour. LX. 462, 471, 497. 
it does not appear that the practice above ' Hatsell, III. 143, 144, 145. 
stated has been changed. May, 198. 

77 



914 LEGISLATIVE ASSEMBLIES. [PaRT VIII. 

posed to carry "<;\dth it its own reason, until it is objected against.^ 
But, where additional clauses, containing new provisions, are added 
to a bill by way of amendment, by the house to which the biU is 
sent, such additional clauses, it seems, stand upon the same footing 
in this respect, as a bill ; and the house to which the bill is returned, 
with such clauses, may request to be informed of the grounds and 
reasons upon which they have been added. 

2363. The inconvenience likely to result, in practice, from the 
rule mentioned in this chapter, is obviated, in part, in this country, 
by the custom, which prevails in our legislative assemblies, of selid- 
ing from one branch to the other, with a bill, aU the documentary 
evidence v\-hich belongs with it, or upon which it is founded. This 
practice, "which is supposed to be quite general, is in some assem- 
blies, sanctioned by a special rule. A joint rule of congress pro- 
vides that " each house shall transmit to the other aU papers on 
which any bill or resolution shall be founded."- In those cases 
where testimony is taken, but not preserved in writing, the incon- 
venience may be partly obviated in those assemblies which proceed 
by joint committees constituting homogeneous bodies, by the refer- 
ence of the subject-matter to such a committee. Where this is the 
case, the oral e^ddence can be stated by members of the committee, 
in both branches. In other cases there seems to be no alternative, 
but to procure the evidence in the manner above stated, or to cause 
it to be taken over again in the branch to which a biU is sent. 



CHAPTER TWENTY-SECOND. 

OF THE ROYAL ASSENT, OR APPROVAL BY THE EXECUTIVE. 

2364. When biUs have been finally agreed to by both houses, the 
royal assent is necessary, in order to give them, as Lord Hale 
expresses it, " the complement and perfection of a la^' ; " ^ and, for 
this pm-pose, all bills, except money bills, remain in the custody of 
the clerk of the enrolments in the house of lords. Money bills are 
informally returned to the commons, after having been agreed to 
by the lords, and are presented by the speaker. Bills, which have 

1 HatseD, IV. 4, 5, and note. the latter, as a matter of course. J. of S. I 

* Under this rule, the report on a bill, sent 498, 499. 
from one branch to the other, is not read in ^ Jurisdiction of the Lords, C. 11. 



Chap. XXIL] koyal assent to bills. 915 

passed both houses, cannot legally be withheld from being presented 
to the sovereign for the royal assent ; ^ wliich may be signified either 
by the sovereign in person, or in virtue of a commission to certain 
lords, issued under the great seal for the purpose. 

2365. The royal assent is seldom given in the former mode, 
except at the close of a session, when parliament is prorogued by 
the sovereign in person. Certain bills, however, which make pro- 
vision for the honor and dignity of the crown, are generally 
assented to in this manner, immediately after they have been 
agreed to by both houses ; such, for example, as bills for settling 
the civil lists. When the sovereign comes in person to give the 
royal assent, the clerk assistant of the parliaments waits upon him 
before he enters the house, reads a list of the bills, and receives his 
commands upon them. When the assent is to be thus given, 
(which takes place in the house of lords, both houses being present) 
the clerk of the crown reads the titles of the bills, and the clerk of 
the parliaments, first making an obeisance to the throne, signifies 
the assent of the sovereign thereto, in a form of words which will 
presently be stated. The assent of the sovereign to each particular 
bill, as its title is read, is indicated to the clerk by a gentle inclina- 
tion; though, as already stated, the royal commands with refer- 
ence to each have previously been given to the clerk assistant. 

2366. When the royal assent is to be given by commission, the 
lord chancellor is notified that a commission is wanted for the pur- 
pose. The clerk of the enrolments then prepares two copies of the 
titles, (each written upon a separate piece of paper,) of all the bills 
in his custody awaiting the royal assent. One of the copies is for 
the clerk of the crown to insert in the commission, and the other 
for the royal inspection before the commission is signed. The com- 
mission is directed to several lords by name, and empowers them, 
or any three or more of them, to give the royal assent to certain 
bills therein mentioned. 

2367. This form of giving the royal assent is sanctioned by a 
statute of Henry VIII., which declares that the king's royal assent, 
by letters patent under the great seal and signed with his hand, 
shall be taken and reputed good and effectual to all intents and 
purposes. The commission is accordingly signed by the hand of 
the sovereign, in ordinary cases ; but, towards the close of the reign 
of George IV., it having become painful for him to write, he was 
authorized by statute to appoint one or more persons, to affix his 

1 Hatsell, n. 339 ; Lords' Jour. XIIL 7 56. 



916 LEGISLATIVE ASSEMBLIES. [PaRT VIIL 

signature, in his presence, and upon a verbal command fi-om him, 
by means of a stamp prepared for the purpose. 

2368. In signifying the royal assent by commission, the proceed- 
ing is as follows. Three or more of the commissioners, seated on 
a form between the throne and the ^voolsack in the house of lords, 
command the usher of the black rod to signify to the commons, 
that their attendance is desked in the house of peers to hear the 
commission read. The commons, thereupon, with their speaker, 
immediately come to the bar. The commission is then read at 
length ; and the titles of the bUls being afterwards read by the clerk 
of the crown, the royal assent is signified to each by the clerk of 
the parhaments, in the Norman French language. 

2369. Money biUs, that is, those which grant a supply, or make 
an appropriation of money, for the purposes of government, do not, 
-when agreed to by the lords, remain in their custody, to receive the 
royal assent in the ordinary manner ; but are retui-ned informally 
to the speaker of the commons to be presented by him in person. 
When, therefore, the commons are summoned and go up to attend 
the sovereign or the lords commissioners, in the house of lords, the 
speaker carries the supply bills with him to the bar, and there de- 
livers them into the hands of the assistant clerk of the parliaments 
for the royal assent. When the sovereign is present in person, the 
speaker prefaces the dehvery of the money bills with a short speech, 
concerning the principal measures of the session, in which he takes 
care to mention the supplies granted by the commons. When the 
sovereign is not present in person, these biUs are delivered without 
any speech. The money bills then receive the royal assent before 
any of the other bills a\vaiting the same ceremony.^ 

2370. The assent, whether given in person or by commissioners, 
is expressed in a different form of words to the different sorts of 
biUs. The language, in which the assent to a biU of supply is pro- 
nounced, acknowledges the free gift of the commons : La regne 
remercie ses bons sujets, accepte leur benevolence, et ainsi le veult. 
The form of expression, in giving the assent to a public bill, is, 
La regne le veult ; to a private bill, Soil fait comme il est desire e ; 
to a petition demanding a right, whether public or private, ^oit 
droit fait comme il est desiree. In the case of an act of grace or 
pardon, which has the royal assent before it is agreed to by the two 
houses, the clerk says, Les prelats, seigneurs, et communes en ce 
present parliament assemblees, au nam de touts vos autres sujets, re* 

1 May, 208, 372, 426. 



Chap. XXIL] executive approval of bills. 917 

mercient tres humblement vostre majestee, et prient a Dieu vous 
donner en sante bonne vie et longue. 

2371. The royal assent may be constitutionally withheld from 
any bill, in which case, it cannot become a law. The form of 
words used to express such a denial is, La Regne s^avisera. But 
the necessity of refusing the royal assent is obviated by the strict 
observance in modern times of the constitutional principle, that the 
crown has no will but that of its ministers ; who only continue to 
serve in that capacity, so long as they retain the confidence of 
parliament. This power was last exercised in 1707, when Queen 
Anne refused her assent to a bill for settling the militia in Scot- 
land.i 

2372. During the- commonwealth, the lord protector gave his 
assent to bills in English ; but, on the restoration, the old form of 
words was reverted to, and only one attempt has since been made 
to abolish it. In 1706, the lords passed a bill "for abolishing the 
use of the French tongue in all proceedings in parliament and 
courts of justice." This bill dropped in the house of commons ; 
and, although an act passed in 1731, for conducting all proceedings, 
in courts of justice in English, no alteration was made in the old 
forms used in parliament.^ 

2373. When acts are thus passed, the original engrossment 
rolls are preserved in the house of lords. All pubUc and local and 
personal acts, and nearly all private acts are printed by the queen's 
printer, and printed copies are referred to as evidence in courts of 
law. 

2374. The practice in this country, with regard to bills that 
have been agreed to by the two branches of wMch our legislative 
bodies are composed, depends almost entirely upon the rules estab- 
lished by each assembly for itself. The proceedings of congress, in 
respect to such biUs, which take place exclusively in virtue of cer- 
tain joint rules first adopted in 1794, and which have been imi- 
tated extensively in other assemblies, are as follows : When a bill 
has passed in both branches, having been previously engrossed on 
paper merely, and not on parchment, it is then to be enrolled on 
the latter material, by the clerk of the house in which the same 
originated, with a certificate thereon signed by him, of that fact, 
and then delivered without any order of commitment, to a com- 
mittee, caUed the committee on enrolled bills, for examination by 
them. This is a joint standing committee, consisting of two mem- 

1 May, 372. 2 May, 373. 

77* 



918 LEGISLATIVE ASSEMBLIES. [ParT VIIL 

bers from each branch, appointed at the commencement of each 
session, TS'hose duty it is to compare the eni'olment with the en- 
grossed bills, as passed in the two houses, and, after coiTCcting any 
errors they may discover therein, to report the same forthwith to 
their respective houses.^ Enrolled bills, after this examination and 
report, are to be signed in the respective houses, first by the speaker, 
and then by the president of the senate, and entered on the journal 
of each house. The committee is then to present the enrolled 
bills to the president of the United States, for his approbation. 
They are then to report the day of the presentation, which is to be 
entered on the journal of each house. The signing of an enrolled 
bill by the speaker or president is an official act, which can only be 
done w^hen the house over which he presides is in session, and a 
quorum is present therein for the transaction of business.- 

2375. In the greater number of the legislative bodies in this 
country, the approval of the executive is as necessary to constitute 
a la^\^, as it is in parfiament to have the royal assent, in the man- 
ner already described. In the constitution of the United States, 
and in those of every State in the Union, except in the following 
eight States, namely, Ehode Island, Delaware, Maryland, Virginia, 
North Carofina, South Carolina, Tennessee, and Ohio, the inter- 
vention of the executive is required to the perfection of every act 
of a legislative character. In the States above named, no approval 
of bills by the executive is requned, but every act of legislation 
therein is complete by the concurrence of the two branches of 
which their legislative bodies are composed. The veto power, as it 
is called, -^'hich, in the Engfish government is, in theory, absolute, 
and which seems, in modern times, such is the manner in w^hich 
parfiament is at present constituted, not to be exercised at all, is, in 
this country, quafified and fimited only ; but everyvi^here with us, 
where it exists, it is frequently and freely used, as one of the ordi- 
nary functions of government, chiefly on the ground of constitu- 
tional objections. 

. 2376. The proceedings on bills, in the legislative bodies of this 
country, after they have passed both houses, are somewhat different 

1 Mistakes in the enrolment are to be cor- examined and reported upon by the commit- 

rected by the committee before they report tee, and, if it has ah-eady been signed, is sign- 

an enrolled bill ; but, iu looking over bills for ed over again by the presiding officers of the 

this pui-pose, they sometimes discern impor- two houses. See J. of H. 30th Cong. 1st Sess. 

tant mistakes which have hitherto escaped 979, 980, 991 ; J. of S. 30th Cong. 1st Sess. 

detection; and which, upon being pointed 453. 

out, are at once corrected by general con- - J. of H. 19th Cong. 1st Sess. 639. 
sent. When this takes place, the bill is again 



Chap. XXIL] executive approval of bills. 919 

from those above described, at least under those constitutions in 
which the veto power is established. In our assemblies, the execu- 
tive approval is not given at stated times, or at the end of the ses- 
«sion, at a meeting of the two branches ; but bills, and such other 
papers as require the approval of the executive, are sent to him, as 
they are passed, and his approval thereof signified and authenti- 
cated by his signature ; nor for that purpose are they sent to, or do 
they remain, in one house, in preference to the other, after they 
have passed both houses, but remain in that branch in which they 
were last passed, or w here they were last agreed to, to be transmit- 
ted at once to the executive department. In those States where 
there is no veto power in the executive, biUs wdiich have passed 
both branches, are authenticated in the usual manner, probably by 
the signatures of the presiding officers, and deposited in the recep- 
tacle or custody appointed by law J^v the purpose. In the follow- 
ing paragraphs, the subject of the vetc ^ower, which, in aU the con- 
stitutions in which it is inserted, is qvite similar, or nearly the 
same, and the practice in relation to it, are stated and explained. 

2377. I. The first requisition for the exercise of this power is, 
that every bill, including, of course, every instrument intended to 
have the force of law, w hich shall have passed both branches, shall, 
before it becomes a law, be presented to the executive for his ap- 
proval. The other papers, besides bills, which are required to be 
approved by the executive, are particularly specified in each consti- 
tution. There is no time stated within which bills must be x)ie- 
sented to the executive ; this may take place at any time aftei <i 
biU has passed, and before the end of the session ; though this mat- 
ter may be otherwise regulated by rule, or by constitutional pro- 
vision ; and the bill is not passed so long as there remain any 
amendments to the same, of the other branch, not yet acted upon 
or agreed to.^ There is no provision in the veto clause, as to the 
manner in which bills presented to the executive are required to be 
authenticated, but they are required for this purpose to be authenti- 
cated only in the ordinary manner, which, either by usage, rule, or 
constitutional provision, is effected by appropriate words and the 
signatures of the presiding officers. In the following States, in 
some of which the veto power exists, and in others not, namely, 
North Carolina, South Carolina, Florida, Georgia, Alabama, Mis- 
sissippi, Tennessee, Ohio, Indiana, Illinois, Missouri, Arkansas, 
Texas, and Iowa, it is provided by their several constitutions, that 

1 J. of H. 26th CoDg. 1st Sess. 1315. 



920 LEGISLATIVE ASSEMBLIES. [PaRT VIIL 

when bills have passed both houses, they shall be signed by the 
respective presiding officers thereof. 

2378. II. The second requisition of the veto clause is, that if 
the executive approves the bill thus presented to him, he shall sign 
it. Mere approval alone, without signing, although the latter is 
omitted by accident, will not be sufficient.^ On the other hand, if 
a bill which has been duly authenticated, as having passed both 
branches, receives the executive approval, and is signed by him, it 
will become a law, notwdthstanding the agreement of the two 
branches is certified thereon by mistake.^ There is no provision as 
to the time that a bill shaU be approved and signed ; but from the 
fact that it can only be disapproved of and returned, while the legis- 
lative body is in session, it may fairly be inferred that a bill can be 
approved and signed only wdthin that time. When a bill has been 
approved and signed, the legislative body is usually notified of it 
by message, and the bill, now become an act, is deposited in the 
place for the purpose appointed by law for the keepmg of the 
records and archives. The approval of a bill should be by the use 
of some appropriate word or words, accompanied by the signature 
of the executive magistrate, but not by a statement of his expo- 
sition of the meaning of it, or of his reasons for signing the bill. 
The latter course, though it does not detract from the validity of 
the bill, is clearly irregular and unconstitutional.^ 

2379. III. The veto clause then provides, that if the executive 
sshaU. not approve the bill, he shall retm-n it with his objections, to 
the house in "^^hich it shaU have originated, "^dthin a certain num- 
ber of days fixed in each constitution ; and that if not so returned, 
the bill shall become a law, in the same manner as if signed by the 
executive. If a bill is not approved or returned witliin the time, the 
legislature ought to be notified by the executive that the bill has 
become a law without his agency, and the bill itself deposited 
accordingly. The house, in which a bOl originates, is commonly 
made known by a certificate on it, or by the message with which 
the same is transmitted ; or the executive may send a message to 
both houses to be informed in which the bill originated. In all the 
constitutions, except that of Massachusetts, Smidays are expressly 
excluded fi-om the computation of the interval within which a biU 
is to be returned, and the day on which it is presented is also to be 



1 J. of H. 18th Cong. 2d Sess. 276, 279. ^ j. of S. 21st Cong. 1st Sess. .382. See J. of 

2 J. of H. 23d Cong. 2d Sess. 433, 434; J. of H. 27tli Cong. 2d Sess. 1025; Cong. Globe, 
S. 23d Cong. 2d Sess. 162. XL 712. 



Chap. XXIL] executive approval of bills. 921 

excluded from the computation. This interval, in the constitutions 
of the United States, New York, Pennsylvania, Louisiana, Kentucky-j 
Illinois, Michigan, and California, is fixed at ten days ; in that of 
Mississippi at six ; in those of Maine, New Hampshire, Vermont, 
Massachusetts, New Jersey,' Florida, Alabama, Georgia, and Texas, 
at five days ; in that of Missouri at four ; and in those of Con- 
necticut, Indiana, Arkansas, Iowa, and Wisconsin at three days. 

2380. In all the constitutions above mentioned, it is provided, 
further, that if the legislature adjourns within the interval therein 
respectively fijxed (or in Vermont within three days) and thus pre- 
vents the return of a bill within that time, it shall not become a law. 
But in those of Maine, Pennsylvania, Louisiana, Kentucky, and 
Illinois, the bill is to become a law notwithstanding such adjourn- 
ment, unless it is returned in the first four named States, within 
three days after the next meeting of the legislatures thereof respec- 
tively, and in Illinois, on the first day of the meeting of the general 
assembly next after the expiration of ten days ; in Indiana, the bill 
is to become a law notwithstanding such adjournment, unless the 
governor within five days next after shall file the biU with his objec- 
tions thereto in the office of the secretary of state, who shall lay 
the same before the general assembly at its next session in like 
manner as if the biU had been returned by the governor ; in Michi- 
gan it is provided that the governor may approve, sign, and file in 
the office of the secretary of state within five days after the 
adjournment of the legislature, any act passed during the last five 
days of the session; and in Texas it is provided that every bOl 
presented to the governor one day previous to the adjournment of 
the legislature, and not returned to the house in which it originated, 
shall become a law, and have the same force and effect as if signed. 
When a bill fails of becoming a law by reason of the lapse of time 
provided above, without its being returned to the house in which it 
originated, a message is usually sent with the bill to that house, at 
the commencement of the next session.^ Sometimes the executive 
in his answer to the message informing him of the close of the ses- 
sion takes notice of bills detained for further consideration.^ 

2381. IV. The executive having returned a bill to the house in 
which it originated, it is competent, nevertheless, according to our 
constitutions, for the legislature to give the bOl the force and effect 
of law, notwithstanding the executive objections to it, by passing 

1 J. of S. 21st Cong. 2d Sess. 13, 31 ; J. of H. 2 J, of S. 21st Coug. 1st Sess. 382, 383, 384. 

2rth Cong. 3d Sess. 57 ; Cong. Globe, XVIII. 
30. 



922 LEGHSLATIYE ASSEMBLIES. [PaET VIII 

it in the manner and by the majority, required in the constitution. 
For this purpose, it is provided, in all the American constitutions 
which contain the veto power in substantially the same terms, that 
the house to which the biU is retm-ned shall enter the objections on 
its journal, and proceed to reconsider the bill; that if upon such 
reconsideration, the yeas and nays bemg taken thereon, that house 
shall agree to pass the biU, by the requisite majority, the biU shall 
then be sent vsith the objections to the other house, where it shall 
Kkewdse be in the same manner reconsidered, and that if it there 
passes by the requisite majority of that house it shall then become 
a law, notwithstanding the objections of the executive. A word or 
two on each of the steps suggested by this general analysis will 
complete what remains to be said on the subject of the executive 
veto in this country. 

2382. (1.) The objections of the executive, to the approval of a 
bill, are usually sent vnth the biU. to the house in which it origi- 
nated, by means of a message transmitted in the usual manner. 
The reading of this message may be deferred, but when once com- 
menced, it cannot consistently with order, be dispensed T^dth, even 
though it is then printed and accessible to the members in that 
form.i The message, as it contains the objections of the executive 
to the bUl, makes, properly speaking, a part of the communication, 
and ordinarily belongs regularly with the bill,^ but it may be sepa- 
rately considered, if thought proper, and may be printed,^ or refer- 
red,^ wdthout the bill ; ° and in the house of representatives of con- 
gress, it has been decided, that if a motion is made to refer the 
message separately, and the previous question is thereupon moved, 
the main question is on the motion to refer.^ 

2383. (2.) The first requisition of the constitutions which contain 
the veto power, on the part of the house, to which a biU is returned 
•^dth objections, is, that it shall, on the reception of the bill and 
objections, enter the latter at large on its journal, and proceed to 
reconsider the biU. According to the literal import of the language, 
the objections would be required to be, in fact, spread upon the 
journal before any steps could be taken to reconsider the biU, and 
this is sometimes done ; " but it is not necessary, as by the rule of 
construction and the practice of legislative bodies, the objections 

1 Cong. Globe, XX. 13. s Cong. Globe, XT. 874. 

2 Cong. Globe, XIV. 391. « Cong. Globe, XI. 875. 

3 J. of S. V. 620, 622, 630, 631. ' J. of H. VH. 566. 
* J. ofH. 27tli Cong. 2d Sess. 1252, 1254; 

Cong. Globe, XI. 874. 



Chap. XXILJ executive approval of bills. 923 

are considered as spread upon the journal, though they are not so 
in fact when they are first received ; Mt is sufficient if they are 
entered upon the journal as a part of the proceedings on the bill 
before they are sent to the other house. 

2384. (3.) The house to which a bill is returned with objections, 
may, thereupon, proceed to reconsider the same at once, or it may 
assign the consideration thereof for some future time, to which the 
bill and objections are postponed ; - or they may be referred to a 
select committee,^ or a committee of the whole ; * or a vetoed bill 
maybe ordered to lie on the table ;^ or the house may adjourn 
during its consideration ; ^ and in the house of representatives of 
congress, it has been decided that if a motion is made to refer or to 
postpone the bill, and a motion is thereupon made for the previous 
question, the main question is on passing the bill notwithstanding 
the president's objections.' In reconsidering a vetoed bill either 
house, before taking the final question thereon, may institute such 
preliminary proceedings with regard to the same as it may think 
proper. 

2385. (4.) The question, on passing a vetoed biU, whether from 
the other branch,^ or from the executive,^ is a privileged question, 
even against a special order for the consideration of a report and 
resolutions concerning the objections of the executive to the bill in 
question ; '^^ that is to say, a motion to proceed to the consideration 
of the vetoed biU will take precedence of motions to proceed with 
other bills, on the ground that the provisions of the constitution are 
entitled to precedence over the rules of the house. If this motion 
is decided in the negative the ordinary course of business will 
revive. 

2386. (5.) When a vetoed biU, after all the other intermediate pro- 
ceedings thereon have taken place, comes up for consideration in 
the house in which it is pending, it is the duty of the presiding 
officer of that house, wdthout any motion made for either purpose, 
to state the question on passing the bill, and that the same is to be 
taken by yeas and nays in the manner required by the constitution 
under which the proceedings take place. This question is the 

1 Coiiff. Globe, XV. 483. of H. 27th Cong. 2d Sess. 1252, 1254; Cong. 

2 J. of S. V. 620, 622, 630, 631. Globe, XI. 873. 

s J. of H. 27th Cong. 2i Sess. 1252, 1254; « Cong. Globe, XI. 873. 
Cong. Globe, XL 873. ' Cong. Globe, XIIL 665; Same, XV. 1166. 

* Cong. Globe, XL 873. » Cong. Globe, XIV. 396. 

» J. of S. 24th Cong. \st Sess. 421, 467 ; J. » Cong. Globe, XL 905. 

w Cong. Globe, XI. 905. 



924 LEGISLATIVE ASSEMBLIES. [PaRT VIII. 

same in all cases, namely, shaU the bill pass not-^dthstanding the 
objections of the executive, and must in all cases be taken by yeas 
and nays, which must be recorded on the journal. It may be dis- 
posed of, either temporarily or permanently, by any of the subsid- 
iary motions, except that of amendment, which, as a veto biU 
must be passed or rejected as it stands, is not admissible.^ On any 
of the motions for disposing of the bill, whether made at the present 
time or any other, the question thereon is to be taken and decided 
in the ordinary manner, and by the ordinary majority. The final 
question on the bill, as stated above, must, on the contrary, be 
taken in the manner prescribed, and decided by the majority 
required, usually greater than is required on other questions in each 
particular constitution. 

2387. (6.) This majority is variously expressed in the different con- 
stitutions ; and, mth one exception, which wlU be presently stated, 
it is the same in both branches. These constitutional provisions 
may, however, be all reduced to four classes ; fijst, in the constitu- 
tion of the United States, and in those of the States of Maine, 
New Hampshire, Massachusetts, Pennsylvania, Mississippi, New 
York, Georgia, Texas, Wisconsin, Iowa, and California, the house 
being duly constituted for the transaction of business, the majority 
required is that of two thirds of the members present ; second, in 
those of Louisiana, and Michigan, tvi'o thirds of aU the members 
elected ; third, in those of Vermont and Connecticut, the ordinary 
majority ; and, fom-th, in the constitutions of New Jersey, Florida, 
Alabama, Kentucky, Lidiana, Illinois, and Ai'kansas, the majority 
requhed is a majority of all the members elected. In the constitu- 
tion of Missouri, it is remarkable, that in the house to which a biU 
is returned with objections, the ordinary majority only is requued 
to pass it, but in the other, it must be passed by a majority of aU 
the members elected to that house.^ 

2388. (7.) K the bill passes in the house to which it is returned 
by the requisite majority, it is then to be sent to the other, to be 
there reconsidered, with the objections of the executive, by a mes- 
sage fi-om the former. If, on such reconsideration, the house agrees 
to pass the bill by the requisite majority, it then becomes a law.^ 
The vote on the biH, whether in the affirmative or negative, does 

1 Cono'. Globe, XV. 1184. * See the proceedings of the two houses of 

2 The intention was probably the same, in congress, on the thi/d of March, 1845, in pass- 
regard to botl branches; but the language is ing a vetoed bill, '' relating to revenue cutter 
different. steamers." J. of S. 2Sth Cong. 2d Sess. 262. 



Chap. XXIL] executive approval of bills. 92f 

not admit of being reconsidered.^ But a new bill may be offered, 
if not otherwise objectionable.^ 

2389. (8.) There seems to be no good reason why a biU which 
has been passed in this manner should not be authenticated by a 
certificate thereon of the proceedings with relation to the same in 
each branch, signed by the proper authenticating officers thereof, 
respectively, and deposited at once without the intervention of the 
executive, in the place or custody appropriated for the keeping of 
the laws. But, in one case, it was thought necessary by congress 
to pass a joint resolution, "that the secretary of the senate be 
directed to present to the secretary of state, the biU in question, 
with certified extracts from the journals of the senate and house, 
showing the proceedings in the tw^o houses of congress respectively 
on the same bill, after the same had been returned to the senate by 
the president with his objections thereto." ^ 

2390. (9.) "When bills have been agreed to, and become laws, in 
any of the ways above mentioned, that is to say, either by the con- 
currence of the two branches alone, or by such concurrence, accom- 
panied by the approval of the executive, or by such concurrence, 
not\vithstanding the objections of the executive, they are deposited 
and kept by the proper officer, appointed by law, or designated by 
usage, for the purpose, by whom or whose authority, the laws are 
authenticated and published, from time to time, for the information 
of the people, and as evidence in courts of justice. This is so gen- 
erally the case, that the necessity of proving by an authenticated 
copy seldom occm-s.* 

1 J. of H. 27th Con^. 1st Sess. 1093, 1095, < For full and accurate information on this 

1097,1098; Cong. Globe, XIU. 672. subject, which does not properl_y belong to 

* J. of S. v. 636. the plan of this work, see the works on evi- 

» J. of S. 28th Cong. 2d Sess. 262. dence generally, and May, 580, and following, 

78 



926 LEGISLATIVE ASSEMBLIES. [PaRT VIII. 



CHAPTER TWENTY-THIRD. 

or SEVEEAL MISCELLANEOUS MATTERS CONNECTED WITH THE 
PASSING OE BILLS. 

2391. This chapter is devoted to the consideration of several 
topics, which either do not make a necessary part of the proceed- 
ings on biUs, at any of the regular stages in their progress, or which 
are quite independent of the progress of a bill, but are too impor- 
tant, in their connection with bills, to be whoUy overlooked. These 
proceedings relate chiefly to the correction of mistakes betAveen the 
two houses, with regard to the passing of bills ; to the reconsidera- 
tion of votes respectmg the same ; to the correction of mistakes in 
declaring and recording the votes thereon ; and how far the validity 
of the proceeding is affected by the want of the usual forms. 

2392. If any mistake occm's in the delivery of a message accom- 
panying a bill, which is not discovered until the messengers have 
returned, the mistake may be corrected by means of a new mes- 
sage, either from the house by which the &st was sent, or from the 
other, suggesting the occurrence of the mistake. 

2393. It sometimes happens, where a bill, which is passed in one 
house, and sent to the other, is there passed with amendments, 
that the latter are incorrectly engrossed or certified, when the biU is 
returned to the house in which it originated. Where this is the 
case, the amending house informs the other of the fact, by message, 
and either requests a return ^ of the bill and amendments, in order 
that the mistake may be coiTected ; ^ or that the clerk of the amend- 
ing house may be permitted to attend ^ in the other for that pur- 
pose. Where a mistake occurs in the engrossment of a biU which 
is sent by one house to the other, a similar proceeding takes place."^ 
Where a bill is sent from one house to the other, without the sig- 
nature of the clerk of the amending house, the defect is suggested 
by a message from the house to which the bill is sent, and the clerk 
of the former is thereupon allowed, on message for the purpose, to 

1 J. of H. I. 520; Same, VII. 356; Same, rected, by the amendment being disagreed 'o. 

14tli Cong. 1st Sess. 549; J. of S. 14th Cong. J. of H. 1. 267. 

1st Sess. 357; Cong. Globe, XIL 390. s j. of S. 27th Cong. 3d Sess. 283. 

- lu one case, where an amendment, -which * J. of H. 27th Cong. 3d Sess. 520 ; Same^ 

■was not, in fact, adopted, was improperly cer- 25th Cong. 2d Sess. 1244. 
tified, the mistake appears to have been cor- 



Chap. XXIIL] matters connected with the passing of bills. 927 

affix his signature to the bill at the clerk's table of the latter ; ^ or 
the bill may be sent to be attested.^ 

2394. Where a bill is sent from one house to the other by mis- 
take,3 or is wanted in the originating house for the purpose of 
reconsideration,* or for any other purpose,'^ a message is sent from 
the former requesting its return. 

2395. In all the above-mentioned cases, in which one house 
sends to the other for the return of a bill, the message is considered 
by the house to which it is sent, and the bill ordered to be returned, 
at the first convenient opportunity, without formally rescinding any 
of its former votes ^ with relation to the bill. When a bill, re- 
turned in this manner, is received back, it is begun again as a new 
bill. 

2396. It is a general rule, that it is not competent for either 
house, or any of its committees, to proceed upon a bill or other 
paper which is not in its possession ; and in such case, therefore, 
when a biU," joint resolution,^ or series of amendments,'' from the 
other branch, is accidentally lost or mislaid, the house, to which the 
same is sent, may request of the other, by message, a certified copy 
of such bill, resolution, or amendments, and this request is never 
refused; but if the bill or other paper in question is of the same 
house, and is there referred to a committee of the whole, the com- 
mittee, on reporting the fact that the paper referred to it is lost or 
mislaid, or that it has been sent to be printed, and is not likely to 
be returned in season, may be deferred,^" or the committee may pro- 
ceed upon a copy furnished by a member.^^ 

2397. The proceedings on a bill, at any stage of its progress, 
may be interrupted, by its being ordered to lie on the table ; and in 
this case, when the consideration of the bill is resumed, it is taken 
up at the precise point at which it was suspended.^''^ 

2398. The distinction between public and private bills, which, in 
parliament, leads to the separate consideration of the latter, upon a 
distinct system, is recognized in all our assemblies,^^ jj^ which it is 

1 J. of H. 25th Cong. 2d Sess. 254. 32d Cong. 1st Sess. 1026 ; J. of S. 32d Cong. 

2 J. of S. 25th Cong. 2d Sess. 133. 1st Sess. 592. 

3 J. of S. 25th Cong. 1st Sess. 375; Same, 8 j. of H. 32d Cong. 1st Sess. 348; J. of S. 
80th Cong. 2d Sess. 291 ; Same, 1st Sess. 170. 32d Cong. 1st Sess. 209, 211. 

* J. of H. 28th Cong. 2d Sess, 554, 555. » J. of H. IX. 521, 523. 

B J. of H. 30th Cong. 1st Sess. 404, 972 ; J. w ,J. of H. IX. 839. 

of S. 32d Cong. 1st Sess. 472. " Cong. Globe, IX. 169. 

8 J. of S. 23d Cong. 1st Sess. 375; Same, 12 j. of H. L 241, 242, 245. 

25th Cong. 2d Sess. 133; Same, 27th Cong. 1st 1^ Whether a bill belongs to the one class or 

Sess. 241, 246 ; Same, 3d Sess. 268. the other, is a question of order. Cong. Globe, 

I :, of S. 19th Cong. 2d Sess. 131; J. of H. XIL 183; Same, XIIL 636. 



928 LEGISLATIVE ASSEilBLIES. [? AllT YlII. 

attended, in a greater or less degree, according to the character of 
each assembly, "^dth corresponding differences in the proceedings. 
Among these differences, one of the most common is the passing 
of ah order, on the report of a committee or otherwise, requiring 
the parties interested in the bill, or appl}dng for it, to give notice of 
such bill or application in the manner pointed out in the order, 
either to all persons generally, or to particular persons named, re- 
quirmg them to appear, on a day fixed, and shovi^ cause, if they 
have any, ^^''hy the application should not be granted.^ In the mean 
time all further proceedings are, of coiuse, suspended. 

2399. It is not consistent, as we have seen, with the ordinary 
practice of parliament, for one house to iiuorm the other by what 
number a bill passes ; ^ yet where a bill or other measure passes 
without a dissenting vote, it is allowable to insert that fact in the 
attestation ; ^ and it is not disrespectful in one house towards the 
other, to recommend the bill, as one of great importance, to the 
consideration of the house to w^hich it is sent.* For the same 
reason, if a biU, sent by one house to the other, is there apparently 
neglected, the first house may remind the other of it by message.^ 
So one house may be reniinded by the other of the report of a 
committee of conference on the disagreeing votes of the tw^o houses 
concerning a bill.^ 

2400. TVTien a biU, sent from one house to the other, is of the 
same title, or for the same purpose, "udth a bill of the other already 
pending in that branch, the com-se is, as one bill only is necessary 
to be passed, to refer them both to the same committee, and, upon 
their report, to reject the one and pass the other." The bill passed 
may ordinarily be amended, if necessary, by provisions taken from 
the other ; ^ but in the house of representatives in congress, it is 
provided, by rule, that no biU shall be amended by the annexation 
or incorporation of any other bill pending before the house. The 
operation of this rule, however, may be prevented, by a slight 
change of phraseologj^^ 

2401. Amendments, which are merely the necessary consequence 
of another and principal amendment, cohere with it, and are dis- 

1 J. of S. II. 7S, SO. munications between the speakers, or mem- 

2 Ante, § 2360. bars of the two houses." 

s Pari. Eeg. XV. 2-38. 8 J. of S. 23d Cong. 2d Sess. 239; Eeg. of 

* Jefferson's Manual, Sec. XL"\.TI. Deb. XI. Part 2, 1661. 

B Jefferson's Manual, Sec. XLVin. ; Cong. ? J. of H. VHI. 651 ; Same, 14th Cong. 2d 

Globe, XV. 1084. Mr. Jefferson remarks, that Sess. 453, 454, 455. 

if this apparent neglect " be mere inattention, ^ Reg. of Deb. IV. Part 1, 631. 

it is better to have it done informally, by com- ^ Cong. Globe, XIV. 85. 



Chap. XXIIL] matters connected with the passing of bills. 929 

posed of, as matters of form only, by a vote on the principal amend- 
ment ; thus, where the senate of the United States adopted an 
amendment to a bill from the house, relating to the apportion- 
ment of representatives, changing the ratio of representation, and 
other amendments in subsequent clauses, changing the numbers of 
the representatives to be elected, accordingly, it was held, in the 
house, that the latter were consequent only upon the former, and 
as such, might be treated by the clerk as merely matters of form, 
without any specific vote thereon ; ^ but this principle does not ex- 
tend to errors, which are merely clerical, and which must still be 
corrected by motion and vote only.^ 

2402. It sometimes happens that the vote on a bill is incorrectly 
announced, either in consequence of some error in the computa- 
tion,'^ or in the record ^ of the vote, and that the error is afterwards 
discovered, or the mistake corrected, and the true result ascertained ; 
as, for example, that an amendment reported by a committee on 
the bill was adopted,'^ or that the bill was not ordered to lie on the 
table,*^ or that the bill passed ; '' M^hen, in point of fact, the amend- 
ment was not adopted, or the bill was ordered to lie on the table, 
or that it was rejected. In these cases, at whatever distance of 
time the discovery is made, or the correction takes place, the subse- 
quent proceedings, with reference to such bills, are null and void ; 
and the bill stands before the house for its action thereon, if any is 
necessary or expedient, precisely as if the vote had been correctly 
announced when it was taken. Thus, in one of the above-men- 
tioned cases,^ the house having ordered the bill to be engrossed, 
after the vote on the amendment had been declared, and before it 
had been corrected, it was held, in the house of representatives of 
the United States, that the proceedings commenced at that point, 
and that the house was entitled to a new vote on the engrossment. 
In several of the cases cited, it was held by the same house, that a 
motion to reconsider could only be made by one who voted with 
the prevailing party, and that this motion must be made within the 
time limited by the rules and orders, reckoned from the time when 
the vote was given, and not from the time when the result was cor- 
rectly announced. 

1 J. of H. 27th CoiiR. 2d Sess. 965. 6 J. of H. 30th Cong. 1st Sess. 1079, 1080 

« Cong. Globe, VII. 28. 1081. 

3 J. of H. 31st Cong. 1st Sess. 1436; Same, « .J. of H. 31st Cong. 2d Sess. 171. 

2d Sess. 171; Cong. Globe, XV. 856; Same, 'J. of H. 31st Cong. 1st Sess. 1436; Cong 
XXL 1786. Globe, XV. 856; Same, XXL 1786. 

* J. of H. 26th Cong. 2d Sess. 31, 32 : Same, « J. of H. 30th Cong. 1st Sess. 1079, 1080 
»Oth Cong. 1st Sess 1079, 1080, 1081. 1081. 

78* 



930 LEGISLATIVE ASSEMBLIES. [PaET VIII. 

2403. A form of legislation, Avhich is in frequent use in this 
country, chiefly for administrative purposes of a local or temporary 
character, sometimes for private purposes only, is variously known, 
in our legislative assemblies, as a joint resolution, a resolution, or a 
resolve. This form of legislation is recognized in luost of our con- 
stitutions, in which, and in the rules and orders of our legislative 
bodies, it is put upon the same footing, and made subject to the 
same regulations, ^\dth bills properly so called. Li congress, a joint 
resolution, which is the name given in that body to this kind of 
legislation, is there regarded as a bill.^ 

2404. It is not uncommon, after a bill has been passed through 
all its regular stages in either house, for that house to discover, that 
an amendment to the biH has been improperly adopted or rejected, 
and to desue a correction of the erroneous vote. Tliis can only be 
done in parliament, if at aU, ordinarily by means of a new bill. 
But, in our legislative assemblies, as the regular stage for amend- 
ing the bill has passed, the correction can only take place by unani- 
mous consent, or if objection is made, by a series of reconsidera- 
tions. This is the method usually resorted to. Thus, if the com- 
mittee to whom a bill is referred after the second reading, report 
the same \\dth an amendment, which is improperly adopted or re- 
jected, and the bill is thereupon read a thud time, and passed, and 
it is then discovered that the vote on the amendment is incor- 
rect, and a correction thereof is desired before the biU passes. In 
order to accomplish this, a motion is made to reconsider the vote, 
by which the biU passed, and this being decided in the affirmative, 
the question then recurs on passing ; and this motion being decided 
in the negative or ^\dthdrawn, a motion is then made on which 
similar proceedmgs take place, that the vote on ordering the biU to 
a thud reading be reconsidered. The stage at which the amend- 
ment was voted upon, being thus reached, the mistake may be 
corrected by means of a reconsideration ; and the mistake being 
corrected, the bill is then again passed tluough aU its regular 
stages. The only difficulty likely to be encountered in this course 
of proceeding occurs, when the previous question has been moved 
upon the bill and sustained at any one of its stages. When the 
vote therefore has been reached, it may be reconsidered like any 
other ; but the question thereupon recurs on the motion for the 
previous question, which, in order to accomphsh the end in view, 
must be withdrawn ; inasmuch as a negative decision of it will 

1 J of H. 32d Cong. 1st Sess. 679; Cong. Globe, XH. SS-l, 385. 



Chap. XXIIL] iiatters connected with the passing of bills. 931 

postpone the bill for that day, and an affirmative will compel the 
house to take the question, on which it is moved, immediately, and 
without alteration. 

2405. It remains to be seen in what manner and to what extent 
the passing of bills is affected in this country, by constitutional pro- 
visions ; in reference to all which it may be stated generally, that 
those which require the observance of certain formalities are equally 
imperative with those which withdraw certain topics altogether 
from ordinary legislation ; and that it is competent in the one case 
as well as in the other, for the courts of law to set them aside for 
unconstitutionality. The American constitutions contain many 
provisions on this subject ; which, as it would take too much space 
to notice in detail, may all be arranged in foiu different classes. 

1. Provisions, which withdraw certain topics altogether from ordi- 
nary legislation ; one of the most common of which is in express 
terms that no law shall be passed impairing the obligation of con- 
tracts, and it is implied, in every constitution, that no law shall 
be passed to alter its form, or which is repugnant to its substance. 

2. Provisions which require the observance of certain formalities 
in the passing of all laws. The constitution of New York con- 
tains a good illustration of the provisions of this class. It declares 
that " no bill shall be passed unless by the consent of a majority of 
all the members elected to each branch of the legislature, and the 
question upon the final passage shall be taken immediately upon 
its last reading, and the yeas and nays entered on the journal." 

3. Provisions, which declare that no bill of a particular description 
or for a given purpose shall be passed but with certain formalities. 
The constitution of Rhode Island, provides that when bills are pre- 
sented in either house, for the creation of certain corporations, they 
shall be continued, and public notice given thereof, in the mean 
time, until a new election of members shall have taken place ; 
the constitution of Delaware provides, that no act of incorporation, 
except for certain purposes, shall be enacted, which does not contain 
a reserved power of revocation by the legislature, and in many of the 
constitutions it is required, that laws for particular purposes shall 
only pass by certain majorities as, in the last-mentioned State, no 
act of incorporation can be passed without the concurrence of 
two thirds of each branch. 4. Provisions, which require that bills 
of a certain description shall originate in one house, in preterende 
to the other, of which, the most important is that aheady spoken 
of, revenue bills. 

2406. In determining whether a given act is constitutional, or 



932 LEGISLATIVE ASSEMBLIES. [1*AET VIIL 

whether it is inoperative, as contravening some of these constitu- 
tional provisions, courts of justice proceed in different manners, ac- 
cording as the act in question belongs to one or another of the 
above-mentioned classes. Li determining whether the act belongs 
to the first class, its internal contents only are to be considered ; in 
determining whether the required formalities have been complied 
with, the internal contents of the act ordinarily furnish no evidence, 
but the inquiry must be extraneous altogether ; and, in determining 
whether the act in question comes under the third and fourth 
classes respectively, both these sorts of inquiry must be combined ; 
first : it must be determined, from the internal character of the act, 
whether it is of the particular description specified ; and, second, if 
so, whether the requisite formalities have been complied with. In 
regard to the requisition of certain formahties, four remarks may 
be made : first, that if no peculiar formalities are requhed, the au- 
thentication of the act, by the signatures of the presiding ofiicers, is 
only requisite ; second, the publication of the act in question, by 
competent authority among the laws, is, at least, presumptive evi- 
dence that it "was passed with the requisite formalities ; third, there 
seems to be no good reason why the formalities required should not 
appear on the bill itself, or in the attestation at the end ; but, 
fourth, if the formalities reqmred do not appear in this manner, they 
can only be proved or disproved, in the absence of a law for the 
purpose, by the testimony of the proper officer, accompanied by his 
book of records. 



LAW AND PRACTICE 



LEGISLATIVE ASSEMBLIES. 



PART EIGHTH. 

OF THE PASSING OF BILLS. 



SECOND DIVISION. 

PRIVATE BILLS .1 

2407. The nature of private bills, as distinguished from public, 
has already been explained ; and it has also been seen, that the lat- 
ter are so far judicial in their character, that the proceedings with 
leference to them frequently involve the exercise of judicial inquiry 
and determination. There are cases, indeed, in which the interests 
of individuals are not adversely concerned, but, in which, the pass- 
ing of a private biU sim-ply confers a benefit upon the party peti- 
tioning, without injuriously affecting any one, as, for example, a bill 
to naturalize or to change the name of an individual ; but, in gen- 
eral, private bills are of such a nature, that they do or may affect 
either individuals or the public in an injurious manner. 

1 In preparing the following account of the my purposes, I have, in many instances, con- 
proceedings in the two houses of the British densed and abridged ; in others, thrown it into 
parliament, in the passing of private bills, I a somewhat different an-angement; and, in 
have availed myself, to the fullest extent, of other cases, I have not scrupled (after the 
the treatise of Mr. May; to whom I desire, mannerof the compilers of law-books) to make 
here, to acknowledge my gi-eat obligations, literal extracts, sometimes, with slight verbal 
In adapting the matter of his third book to alterations. 

(933) 



934 LEGISLATIVE ASSEMBLIES. [PaET VIII. 

2408. In order to protect the interests, public or private, which 
may thus be affected, the proceedings with reference to private bills, 
besides being in general similar to those which take place with ref- 
erence to public bills, are nevertheless partly judicial in their char- 
acter, and are differently conducted in several important respects^ 
chiefly by the addition of certain proceedings which do not occur 
in the case of public bUls. The persons, for whose benefit a private 
bill is introduced, appear as suitors for it ; while those who appre- 
hend any injury from its provisions, are admitted as adverse parties. 
The proceedings are, in some respects, assimilated to those of courts 
of justice ; and various preliminary notices are requhed to be given 
and proved, and conditions to be observed. If the parties interest- 
ed do not sustain the bill in its progress, by pursuing the requisite 
forms and regulations, it will not be forwarded by the house in 
which it is pending ; and if abandoned by the parties, and no 
others undertake to prosecute it, the bill will be lost, however sensi- 
ble the house may be of its value. Fees are also required to be 
paid by every party promoting or opposing a private bill, or petition- 
ing for or opposing any particular provision. The solicitation of a 
biU in parliament is so far regarded by courts of equity as an ordi- 
nary suit, that the promoters of a bill have been restrained by in- 
junction from proceeding with it, on the ground, that its object was 
to set aside a covenant ; and parties have been restrained, in the 
same manner, from appearing as petitioners against a private bill 
pending in the house of lords. Such injunctions are justified, on 
the ground, that they act merely upon the person of the suitor, and 
do not interfere with the jurisdiction of parhament ; which would 
not be true in the case of public bills.i 

2409. This union of judicial with legislative functions, in the 
passing of private biUs, is not confined to the forms of proceeding, 
merely, but is equally manifest in the inquhies and decisions of 
parliament upon the merit of such bills. As a court parliament 
adjudicates upon the individual interests involved in a private biU; 
while, in its legislative capacity, it takes care, that individual shall 
not be promoted at the expense of public interests. However 
much the interests of the promoters of a private biU may be ad- 
vanced by its success, yet if it is likely to prove hurtful to the com- 
munity, it wiU be rejected as if it were a public measure, or quali- 
fied by restrictive provisions not solicited by the parties. In order 
to secure this protection to the public interests, the chairman of 

1 May, 488, 489. 



PKIVATE BILLS. 935 

committees of the whole in the lords, and the chairman of the 
committee of ways and means in the commons, are intrusted with 
the peculiar care of unopposed private bills, and with the general 
revision of all other private bills. The agency of different govern- 
ment boards is also brought in aid of the legislature for the same 
purpose. But while private bills are thus subjected to a variety of 
peculiar proceedings, yet, in every separate stage, when they come 
before either house, they are treated precisely as if they were pub- 
lic bills. They are read as many times, and similar questions are 
put, except when otherwise specially directed by the standing 
orders ; and the same rules of proceeding and debate are main- 
tained throughout,^ The differences above alluded to it is proposed 
now to describe. But before entering upon the description, it 
will be convenient to give an account of what may be called the 
parliamentary machinery, by means of which these peculiarities of 
proceeding are conducted. The proceedings with reference to pri- 
vate bills are so nearly the same in both houses, that in order to 
give an idea of them, it wiU be sufRcient to present a sketch of 
their progress in the first place in the house of commons, and after- 
wards to point out some of the principal differences bet^^een the 
proceedings in that and in the other branch. This course will be 
the more convenient also, from the fact, that, inasmuch as by the 
privileges of the house of commons, every bill which involves any 
charge or burden upon the people, by way of tax, rate, toU, or 
duty, must be first brought into that house, much the greater num- 
ber of private bills, being of that character, are necessarily passed 
first by the commons. Besides these, there are others, which, 
though they may originate in either house, are generally first solic- 
ited in the commons. Those private bills, which must or generally 
do originate in the house of lords, such as naturalization, name, 
estate, and divorce bills, are few in number. In what follows, 
therefore, the house of commons alone is always to be understood 
as referred to, unless the house of lords is expressly mentioned, or 
embraced in the terms used. 

2410. In pursuance of this general plan, the passing of private 
biUs will be treated in the seven following entitled chapters, 
namely : — I. Of the standing orders and proceedings peculiar to 
the hearing of private bills ; II. Of the presentation and reference 
of the petition and proceedings thereon ; III. Of the bringing in 
and first and second reading of a private biU ; IV. Of the com- 

1 May, 489, 490. 



936 LEGISLATIVE ASSEMBLIES. [PaET VIII 

mitment and proceedings in committee ; V. Of the report of the 
committee and proceedings thereupon ; recommitment ; third read- 
ing ; passing ; amendments bet\veen the tw'o houses ; VI. Of the 
differences in the modes of proceeding between the two houses; 
VII. Of private bills after receiving the royal assent. 



CHAPTER FIRST. 

OF THE STAKDESTG ORDERS AXD PROCEEDINGS PECULIAR TO THE 
PASSING OP PRIVATE BELLS. 



SECTioisr I. Notices. 

2411. In order to give due notice, both to the public, and to par- 
ties who may be individually interested in private bills of a local or 
general character and operation, certain public and personal notices 
are required to be previously given of intended applications for 
leave to introduce such biUs. For this purpose, the standing orders 
of both houses, which, in reference to this subject, have been grad- 
ually assimilated to each other, have arranged those biUs, concern- 
ing which notices are required, into two classes, in reference to each 
of which different forms of notices are required. The second class 
consists of bills for making, maintaining, varying, extending, or 
enlarging any aqueduct, archway, bridge, canal, cut, dock, ferry, 
(where any work is to be executed,) harbor, navigation, pier, port, 
railway, reservoir, sewer, street, tunnel, turnpike, or other public 
carriage road, waterwork, and of bills for making and maintaining 
an act for drainage, being a ncAv work, where it is not provided in 
the biU, that the same shall not be of more than eleven feet width 
at the bottom. The first class may be said to include bills of every 
description not embraced in the second.^ Li regard to some bills, 
it is also required, that plans of what is proposed to be done, should 
be previously prepared and deposited where parties interested oan 
have access to them. Thus, when application is to be made to 

1 May, 495, 496, 



Gjiap. L] orders and proceedings relative to private bills. 937 

parliament for leave to introduce a bill for the construction of a 
railroad, the standing orders require that a plan of the road should 
be deposited with the clerk of the peace for each county, in which 
the road is proposed to be made. In some cases, it is required, that 
estimates of the expense of contemplated work should be pre- 
viously made, and some portion thereof deposited by the subscri- 
bers. Various other preliminary conditions, which it would be 
impossible and unnecessary to enumerate, are also required by the 
standing orders to be observed, with regard to different kinds of 
biUs. 



Section II. Parliamentary Agents. 

2412. Parties interested in private petitions or bills are repre- 
sented in their attendance upon parliament by a class of official 
persons, denominated parliamentary agents, analogous to attorneys 
in courts of justice, by whom all the proceedings relative thereto 
out of the house are conducted, and by means of whose agency 
the parties are brought into communication with individual mem- 
bers. The agents are personally responsible to the house for the 
observance of all the rules, orders, and practice of parliament, and 
for the payment of all fees and charges. 

2413. Before any person is allowed to act in this capacity, he 
must subscribe a declaration before one of the clerks in the private 
bill office, engaging to observe and obey aU the rules of the house, 
and to pay all fees and charges when demanded, and, if required, 
must enter into a recognizance in the sum of ^500, for the per- 
formance of his duty in respect to such payment. He is then reg- 
istered in a book kept in the private bill office, and is thereupon 
entitled to act as a parliamentary agent. It is deemed contrary to 
the law and usage of parliament, for any member of the house of 
commons, to engage either by himself or by a partner, in the man- 
agement of private bills before either house, for pecuniary reward ; 
and the same prohibitions apply to the clerks and other officers of 
the house. It is provided, also, by the standing orders, that any 
agent, who shaU wilfully act in violation of the rules and practice 
of parliament, or any rules to be prescribed by the speaker, or who 
shall wUfully misconduct himself in prosecuting any proceedings 
before parliament, or be guUty of any wilful violation of the ses- 
sional standing orders of the house, shall be liable to an absolute 
or temporary prohibition to practise as a parliamentary agent, at 
the pleasure of the speaker 

79 



938 LEGISLATIVE ASSEMBLIES. [PaRT VIIL 



Section III. Private Bill Office. 

2414. In order to facilitate the proceedings upon private bills, 
and, at the same time, to protect the public and parties adversely- 
interested, an office has been established, denominated the " private 
bill office," for the transaction of much of the business relating to 
private bills, which occurs out of the house. In this office a regis- 
ter is kept, which is open to public inspection, and in which aU the 
proceedings are registered, from the presenting of the petition to 
the passing of the biU.^ The entries in this register specify briefly 
each day's proceeding before the examiners or in the house, or in 
any committee to which the bill may be referred ; the day and hour 
on which the committee is appointed to sit ; the day and the hour 
to which it maybe adjourned; and the name of the committee 
clerk. In this office, aU the papers of every description, relative to 
the proceedings on a private bill are filed ; and all the notices of 
proceedings to be instituted are given. 



Section IV. Examinees of Petitions. 

2415. Previous to the year 1846, a select committee on petitions 
for private bills was appointed at the commencement of each ses- 
sion, consisting of forty-two members, whose business it was to 
inquu'e and report, in reference to the several petitions referred to 
it, whether the notices and other preliminary proceedings requu'ed 
by the standing orders, before apphcation was made for a bill, had 
been regularly given and complied with. This committee, in order 
to facilitate its proceedings, was authorized to divide itself into sub- 
committees, consisting of not less than seven members each, among 
whom the petitions referred to the committee were distributed for 
examination. The quorum of the committee was five in opposed, 
and three in unopposed cases. Since 1846, the functions of these 
committees have been transferred to, and performed by, two exam- 
iners of petitions, not members, appointed by the speaker, in pm'su- 
ance of standing orders for that purpose. 

1 Notices in relation to private business are ceeding; but are required to be delivered at 

not given by a member, or entered in the the private bill office, at specified times, by 

order book, like those relating to public busi- the agents soliciting the bL'ls. They are also 

nesS; except in the case of some special pro- printed with the votes. 



Chap. I.] orders and proceedings relative to private bills. 939 



Section V. Standing Orders Committee. 

2416. A committee, connected with the proceedings on private 
bills, is also appointed at the commencement of each session, which 
is called the standing orders committee, consisting of eleven mem- 
bers, five of whom are a quorum. It is the office of this commit- 
tee, upon the report of the examiners of petitions, that the standing 
orders have not been complied with, in a particular case, to de- 
termine and report whether they ought or not to be dispensed 
with ; whether, in their opinion, the parties should be permitted to 
proceed with their bill or any part of it ; and, if so, under what 
conditions, if any, as to giving notices, publishing advertisements, 
and depositing plans, when such conditions seem proper. 



Section VI. Committee of Selection. 

2417. A second committee, relative to private bills, called the com- 
mittee of selection, is also appointed at the commencement of each 
session, consisting of the chau-man of the standing orders commit- 
tee, who is ex officio the chairman thereof, and of four other mem- 
bers, nominated by the house, three of whom are a quorum. The 
function of this committee, as its name imports, is the selection 
and appointment, according to certain rules, which wiU be adverted 
to hereafter, of the committees on private bills. 



Section VII. Chairman of the Committee on Wats and Means ; 
Counsel to Mr. Speaker; Government Boards. 

2418. It has recently been made the duty of the chairman of the 
committee of ways and means, assisted by Mr. Speaker's counsel, 
who is not a member, to examine aU private biUs, whether opposed 
or unopposed, and to call the attention of the house, and also if 
he thinks fit, of the chairman of the committee on every opposed 
private bill, to all points which may appear to him to require it ; 
and, in the case of unopposed bills, he is also to report any special 
circumstances. To facilitate this examination, the chairman and 
counsel are required to be furnished with copies of the original bill, 
and also of the bill as proposed to be submitted to the committee. 
If a bill is returned from the lords with amendments, to which 



940 LEGISLATIVE ASSEMBLIES. [PaRT VIII. 

amendments are proposed to be moved, the latter are also required 
to be referred to the chairman and counsel.^ 

2419. The different public boards and government departments 
are also employed in the supervision of private bills. The commis- 
sioners of railways suggest such amendments in railway biUs, as 
they think necessary for the protection of the public, or for the sav- 
ing of private rights. The secretary of state for the home depart- 
ment exercises a similar supervision over turnpike-road bills. 
Where tidal lands are proposed to be interfered wdth, the lords 
commissioners of the admiralty requue protective clauses to be 
inserted. Where crown property is affected, the commissioners of 
woods and forests have the bill submitted to them. The board of 
trade offer suggestions in reference to bUls affecting trade, patents, 
shipping, and other matters connected with the general business of 
that department. BUls relating to the sewerage of towns are con- 
sidered by the board of health ; and those which affect the revenue 
are brought to the notice of the treasury and other revenue depart- 
ments. 



Section VIIL Time foe peoceeding with Peivate Bills. 

2420. The time appropriated for the consideration of all matters 
relating to private bills is betu^een four and five in the afternoon, 
immediately after the meeting of the house. Every afternoon, a 
quarter of an hour before the time appointed for the speaker to 
take the chair, a list, called the " private business list," is placed on 
the table of the house, on which those members enter then names, 
who have charge of any private petition or bill, in reference to 
which a motion is to be made; and their names are caRed by the 
speaker in the order in which they appear on the list.^ 



Section IX. Conducting oe the Proceedings. 

2421. Every form and proceeding out of the house, in conducting 
a bill, is managed by a parliamentary agent, or by officers of the 
house ; within the house no order can be obtained, but by a motion 
made by a member, and a question proposed and put or supposed 
to be put in the usual manner from the chair. Two members are 
generally requested by their constituents, or by the parties, to un- 

1 May, 526, 527, 556. s May, 511. 



Chap. I.] orders and proceedings relative to private bills. 941 

dertake the charge of a bill ; ^ they receive notice from the agents, 
when they will be required to make particular motions, of which 
the forms are prepared for them ; and they attend in their places, at 
the proper time, for that purpose. In ordinary cases, the motion is 
merely formal, preUminary to the usual order of the house ; but 
whenever any unusual proceeding becomes necessary, notice is re- 
quired to be given of the motion, which is afterwards to be made 
in the usual manner.^ 



Section X. Time for presenting Petitions. 

2422. AU petitions for private bills are required, by a sessional 
order, to be deposited in the private bill office, on or before the 
31st of December, before the commencement of every session of 
parliament ; and no petition will be received after that time, except 
by special leave of the house. In order to obtain this permission, 
a petition must be presented, praying for leave to deposit a petition 
for the bill, and stating and explaining the peculiar circumstances, 
which account for the delay, and justify the application for a de- 
parture from the standing orders. The petition is referred to the 
standing orders' committee, and, if their report is favorable to the 
application, leave is given to present the petition.^ 



Section XL Private Bills not to be brought in, but upon 

Petition. 

2423. It is an express standing order, in each house, that no pri- 
vate bill shall be brought in otherwise than upon petition. But to 
this order, in the house of lords, bUls for reversing attainders, — for 
the restoration of honors and lands, — and for restitution in blood, 
are exceptions. These biUs are first signed by the sovereign, and 
are presented by a lord to the house of peers, by command of the 
crown ; after which, they pass through the ordinary stages in both 
houses, and receive the royal assent in the usual form. The en- 
forcement of the order depends, of course, upon the house, and may 
be waived, if the house thinks proper. Sometimes it happens, that 
a private biU is introduced and proceeded with as a public bill, and, 
in this case, on the fact being pointed out to the house, the bill 

^ The names of the members who are or- ^ May, 512, 513. 
dered to prepare and brhig in the bill, are ^ May, 500, 520. 
printed on the back of it. 

79* 



942 LEGISLATIVE ASSEMBLIES. [PaET VIII. 

is withdra-^Ti. Sometimes, however, when a bill of a private na- 
ture is brought in as a public bill, v^ithout the p^e^^ou3 presentation 
of a petition, it is allowed, to proceed, subject to aU the regulation* 
prescribed for the conducting of private bills, — to the proof of 
notices and other precedent conditions, — and to the payment of 
fees. Bills of this description are generally for carrying out public 
works in which the government is concerned.^ 



CHAPTEE SECOND. 

OP THE DEPOSIT, PEESENTATION, AND REFEEENCE OF THE PETI- 
TION, AND PROCEEDINGS THEREON. 

2424. Having thus explained what may be called the parlia- 
mentary machinery relative to the proceedings upon private pe- 
titions and bills, it is proposed now to give a brief account of those 
proceedings, and of the practice relative to private bills, in the order 
in which they occur. For this purpose, the proceedings and prac- 
tice of the house of commons will be first stated, and afterwards 
some of the principal points in which there are differences between 
the proceedings and practice of the two houses. 

2425. The party or parties interested in procuring the passing 
of a private bill, havmg performed all the preliminary conditions as 
to notices, etc., application for leave to bring in the bill is made to 
the house by a petition, wliich must be signed by the parties, or 
some of them, who are suitors for the bill. Where the standing 
orders require any document to be deposited in the private bill 
office, before the petition can be presented, such documents should 
be deposited accordingly, and a receipt therefor indorsed on the pe- 
tition. These preliminaries having been duly observed, the agent 
of the petitioners deposits then petition, \^dth a printed copy of the 
proposed bill annexed, in the priA^ate bill office, on or before the 31st 
day of December, previous to the commencement of the session. 

2426. When all the petitions for private bills have been thus de- 
posited, a general list of them is made out, on which each is num- 
bered; and when the time for depositing documents, and comply 

1 May, 514 



Chap. 1L] petitiox for private bill. 943 

ing with other preliminary conditions, has elapsed, if it appears 
that the promoters have neglected to comply with any of them, 
parties adversely interested may then complain of such non-compli- 
ance, by means of memorials drawn up for the purpose, and depos- 
ited in the private bill office, according to the position of the 
petition for the biU to which they relate, on the general list. Upon 
such a memorial, duly deposited in the private bill office, the stand- 
ing orders provide, that any parties may appear and be heard before 
the examiner, provided the matter complained of is specifically 
stated in the memorial ; otherwise, the memorialists are not entitled 
to be heard.^ 

2427. The memorials are addressed to the examiner of petitions 
for private bills, and are prepared in the same form, and subject to 
the same general rules, as petitions addressed to the house. When 
the time for depositing them has expired, the opposed and unop- 
posed petitions are distinguished in the general list, and the 
petitions are set down for hearing before the examiners, in the 
order in which they stand in the general list, precedence being 
given, whenever it may be necessary, to unopposed petitions. The 
public sittings of the examiners, of which due notice is given, com- 
mence on the 25th of January, being generally a few days before 
the meeting of parliament.^ 

2428. In order to facilitate the examination of unopposed peti- 
tions, the daily lists of cases set down for hearing before each of the 
examiners are divided into opposed and unopposed, and the latter 
are placed first on each day's list, and first disposed of before pro- 
ceeding to the others. 

2429. If the promoters of a petition do not appear, when their 
petition comes on to be heard, the examiner is required to strike 
off" the petition from the general list. In such a case, the petition 
cannot afterwards be reinserted on the list, except by order of the 
house ; and if the promoters still desire to proceed with their bill, 
they must present a petition to the house, praying that the petition 
may be reinserted, and explaining the circumstances under which it 
was struck off". The petition being referred to the standing orders 
committee, they determine, upon the statement of the parties, 
whether the promoters have forfeited their right to proceed, and 
will report to the house accordingly. If the promoters are allowed 
to proceed, the petition is reinserted in the general list, the usual 
notice given by the examiner, and the case heard by him at the 
apjiointed time. 

1 May, 504. * May, 500, 501, 502, 



944 LEGISLATIVE ASSEMBLIES. [PaRT VIH 

2430. When a petition is called on, the agent soliciting the bill, 
if the case is proceeded in, appears before the examiner with a "UTit- 
ten statement of proofs, showing all the requirements of the stand- 
ing orders applicable to the bill, which have been complied with^ 
and the name of every witness opposite each proof who is to prove 
the matters stated therein. At this time, also, if a petition is 
opposed on the ground, that the standing orders have not been 
complied with, the memorialists are required to enter their appear- 
ances upon each memorial. 

2431. In the mean time, the formal proofs, as they are termed, 
proceed generally in the same manner both in unopposed and 
opposed cases. Each witness is examined by the agent, and the 
affidavits and other necessary proofs produced by him, in the order 
in which they are set down in the statement ; the examiner, also, 
requiring such other proofs and explanations as he may think fit, to 
satisfy him that all the orders of the house have been comphed vnih. 
The standing orders provide, that the examiner may admit affida- 
vits in proof of such compliance, unless, in any case, he shall 
require further evidence.^ 

2432. In an unopposed case, if the standing orders have been 
complied with, the examiner at once indorses the petition accord- 
ingly. If not, he certifies, by indorsement on the petition, that the 
standing orders have not been complied with, and also reports to 
the house the facts upon which his decision is founded, and any 
special circumstances connected with the case. In an opposed 
case, when the formal proofs have been completed, the examiner 
proceeds to hear the memorialists, who, ordinarily, take no part in 
the proceedings upon the formal proofs.- 

2433. When the agent for a memorial rises to address the exami- 
ner, the agent for the biU may raise preliminary objections to his 
bemg heard upon the memorial, on any of the grounds referred to 
in the standing orders, or on account of any violations of the rules 
and usages of parliament, or other special circumstances. These 
objections are distinct from any subsequent objections to particular 
allegations. If no preliminary objection is made, or if it is over- 
ruled, the agent proceeds with the allegations in his memorial. 
Preliminary objections may be raised to any allegation ; as that it 
alleges no breach of the standing orders ; that it is uncertain or not 
sufficiently specific ; that the party specially affected has not signed 
the memorial ; or that he has withdrawn his signature. 

» May, 503. 2 May, 503, 504. 



Chap. ILj petition for private bill. 945 

2484. The allegations of a memorial are to be confined to 
breaches of the standing orders, and are not allowed to raise any 
question upon the merits of the proposed bill, which are to be sub- 
sequently investigated by parliament, and by committees of either 
house. Thus it may be objected, for example, that a subscription 
contract is not valid, or that the subscribers do not thereby legally 
bind themselves, for the payment of the money subscribed ; but it 
may not be alleged, that the subscribers are insolvent and will be 
unable to pay the money. It may be objected, that an estimate is 
informal, or not such an one as is required by parliament ; but the 
insufficiency of an estimate is a question of merits which is not 
within the jurisdiction of the examiner. Again, in examining the 
accuracy of a section of a proposed railway, the examiner may 
inquire whether the surface of the ground is correctly shown, or the 
gradients correctly calculated ; but he cannot entertain objections, 
which relate to the construction of the works, or other matters, 
which are afterwards to be considered by the committees on the 
bill.i The examiner decides upon each allegation, and, whenever 
it is necessary explains the grounds of his decision. When all the 
memorials have been disposed of, he indorses the petition ; and if 
the standing orders have not been complied with, he makes a report 
to the house as already stated. K he should have doubts as to the 
due construction of any standing order, in its application to a par- 
ticular case, he may make a special report of the facts to the house, 
without deciding whether the order has been complied with or not. 
"When the petitions have been indorsed by the examiner, they are 
then returned to the respective agents, who arrange for their presen- 
tation to the house.2 

2435. When the petition for a private bill has been thus in- 
dorsed by one of the examiners, it must be presented to the house, 
by a member, at some time when private business is in order, to- 
gether with a printed copy of the bill anfiexed, not later than three 
clear days after each indorsement ; or if the house is not sitting at 
the time of the indorsement, then not later than three clear days 
after the first sitting. If the standing orders have been complied 
with, the bill is at once ordered to be brought in. If not complied 
with, the petition is referred to the standing orders committee ; and 
the report of the examiner, which had been previously laid on the 
table by the speaker, is also referred to the committee.^ 

» May, 506, 50r. » May, 513. 

« May, 507. 



946 LEGISLATIVE ASSEMBLIES. [PaRT VIII. 

2436. The committee determine and report, whether such stand- 
ing orders ought or ought not to be dispensed -^dth, and Y\-hether, 
in theii' opinion, the parties should be permitted to proceed mth 
their bill, or any portion of it ; and under what conditions, if any ; 
as, for example, after publishing advertisements, depositing plans, 
or amending estimates, when such conditions seem to be proper. 
In the case of a special report, the committee are to determine, ac- 
cording to their construction of the standing order in question, and 
on the facts stated by the examiner, whether the standing orders 
have been complied with or not. If they determine that the stand- 
ing orders have been comphed with they so report to the house ; 
and if not complied with, they proceed to consider whether they 
ought to be dispensed with. 

2437. K, after the introduction of a private bill, any additional 
provision should be desired to be made in the bill in respect of mat- 
ters to which the standing orders are applicable, a petition for that 
purpose should be presented, with a copy of the proposed clauses 
annexed. The petition will be referred to the examiners, and me- 
morials may be deposited against it. After hearing the parties, in 
the same manner as in the case of the original petition for the bill, 
the examiner reports to the house whether the standing orders have 
been complied with or not, or whether there are any appHcable to 
such petition.^ If the additional provisions petitioned for affect the 
revenue, the matter is considered in a committee of the whole on 
some future day ; and if the committee reports a resolution in favor 
of the petition which is agreed to, an instruction is given to the 
committee on the bill to make provision accordingly.^ 

2438. If the standing orders committee, upon such reference to 
them, report, that indulgence should be shown to the promoters of 
a bill, they are allowed to proceed either at once, or after comply- 
ing with certain conditions suggested by the committee. To give 
effect to this permission, the proper course is, for a member first to 
move that the report be read, and then, upon the reading, that 
leave be given to bring in the bill. If any conditions are imposed, 
it will be necessary to prove a compliance with them, before the 
examiner, or before the committee on the biU, when it comes into 
that stage. 

2439. If the committee reports, that the standing orders ought 
not to be dispensed with, the decision is generally fatal to the bih, 
although no reasons are ever assigned for their determination. The 

1 May, 514. 2 May, 51a. 



i 



Chap. Ill] bringing in of private bill. 947 

report is not conclusive, indeed, and cannot preclude the house 
from giving a more formal consideration to the case ; but, al- 
though parties have sometimes been allowed to proceed, under 
peculiar circumstances, notwithstanding the report, yet attempts 
are rarely made to disturb the decision of the committee. But, in 
order to leave the question open, the house only agrees to those 
reports which are favorable to the progress of biEs, and passes no 
opinion upon the unfavorable reports, which are merely ordered to 
lie on the table. 

2440. If the promoters of a bill, after and notwithstanding such 
an adverse report, still entertain hopes, that the house may be in- 
duced to dispense with the standing orders ; or are willing to aban- 
don portions of their bill ; or if there be special circumstances in 
the case, such as the consent of all parties ; or if there be an urgent 
necessity that the biU should pass during the current session ; they 
should present a petition to the house, praying for leave to deposit 
a petition for a bill, and stating fully the grounds of their applica- 
tion. The petition will be referred to the standing orders commit- 
tee, who, after hearing the statements of the parties, will report to 
the house, whether, in their opinion, the parties should have leave 
to deposit a petition for a bill. If leave is given, the petition is 
deposited in the private bill office, and the case is examined, and 
the petition certified by the examiners, in the same manner, as if 
it had been originally deposited before the 31st of December. 



CHAPTER THIRD. 

BRINGING IN AND FIRST AND SECOND READINGS OF PRIVATE 

BILLS. 

2441. When leave has been obtained, in the ordinary manner, to 
bring in a private bUl, it is required to be presented not later than 
three days after the presentation of the petition. The bill must be 
printed on paper oi^. folio size (as determined by the speaker) and 
must be presented in that form, with a cover of parchment attached 
to it, upon which the title is written. When presented, it is entered 
in the votes by a short title given to it in accordance with its sub- 
ject-matter, and by which it is known through aU the subsequent 



948 LEGISLATIVE ASSEjMBLIES. [PaBT VIII. 

proceedings. This title cannot be changed, either by the parties, or 
by committees, unless by the special order of the house. 

2442. It is a general rule, as has abeady been stated with regard 
to public bills, that aU provisions, wliich, by the standing orders, are 
required to be first voted upon in committee, are to be left blank in 
the bill when presented. In private bills, it is now the rule, that aU 
provisions of this description, which are intended to be proposed, 
such as rates, toUs, forfeitures, etc., instead of being left blank, shall 
be inserted in italics in the printed biU. These parts of the bill are 
still technically regarded as blanks to be filled up by the committee ; 
the only purpose of the rule being to make known to the house the 
particular provisions of this description, which are intended to be 
proposed, at the same time that the house are informed of the other 
provisions of the bill. 

2443. The bill may be read a first time immediately after it is 
presented ; but before the first reading of every private bill, except 
name bills, printed copies of the bill must be delivered to the door- 
keeper in the lobby of the house, for the use of members.^ 

2444. When a bill has been read a first time, the regular course 
of proceeding is, that it be ordered to be read a second time, but 
without then fixing a time for that purpose ; and the next step in 
its progress, is the second reading. In the mean time, the biU 
remains in the custody of the private bill office, where it is care- 
fully examined by the proper officers, to see whether it conforms 
with the rules and standing orders of the house. K it is fomid not 
to be in proper form, the examining clerk specifies on the bill the 
nature of the irregularities wherever they occur. If the bill is 
improperly drawn, or at variance with the standing orders, or with 
the order of leave, the attention of the house is called to the fact by 
a member, and the order for the second reading is thereupon dis- 
charged, the biU withdrawn, and leave given to present another. 
The bill so presented is distinguished from the first bill by being 
numbered, and having been read a first time, is referred to the 
examiners of petitions for private bills.^ 

2445. Between the first and second reading, an interval of three 
and no more than ten clear days must elapse ; and the agent for the 
biU is required to give three clear days notice, in "waiting, at the 
private bill office, of the day which is to be proposed for the second 
reading.'^ 

2446. The second reading of a private bih, like the same stage 

1 May, 520, 621. = May, 521. a May, 521. 



Chap. IV.] commitment of private bill. 949 

in public bills, is that in which the house affirm or disaffirm the 
general principle and expediency of the measure which it proposes. 
This is the first occasion on which the bill comes before the house 
otherwise than as a matter of form, or in connection with the stand- 
ing orders ; and if there be any opposition to it, upon its principle, 
this is the proper time for attempting its defeat. If the second 
reading should be deferred for three or six months, or the bill 
rejected, no new bill for the same object can be offered until the 
next session.^ 



CHAPTER FOURTH. 

COaiMITMENT AND PROCEEDINGS IN COMMITTEE. 



Section I. Of the Constitution of the Committees on private 
Bills, and of their Proceedings in unopposed Bills. 

2447. "When a private biU has been read a second time, the next 
regular step is the commitment ; for which purpose, it is referred to 
the committee of selection, to Avhom the power is delegated, as 
already stated, to appoint the committees on private bills. In the 
discharge of this duty, the committee proceed differently, according 
as a biU is opposed or unopposed. A biU is opposed, when a 
petition is presented to the house, by depositing it in the private 
bill office, in which the petitioners pray to be heard against the biU 
by themselves, their counsel or agents, either generally, or only as 
to some of its provisions ; and no bill is considered as opposed 
unless such petition is deposited within seven clear days after the 
second reading.^ A bill is also considered as opposed, in regard to 
which the chairman of the ways and means reports to the house, 
that it ought to be so treated. 

2448. It is the business of this committee to classify the bills, 
nominate the members of the committees to whom they are 
refen-ed, and othenvise arrange the private business of the session. 
For this purpose, all the private bills of the session are laid before 

1 Jlay, 522. « May, 523, 524. 

80 



950 LEGISLATIVE ASSEMBLIES. [PaRT VIII. 

them by the promoters, at their first meeting, and are arranged by 
the committee into groups of such as may conveniently be sub- 
mitted to the same committee. At the same time, they name the 
bill or bills which are to be taken into consideration on the first day 
of the meeting of the committee.^ 

2449. Every unopposed private bill is referred, by the committee 
of selection, to the chairman of the committee of yyajs and means, 
and tru^o other members of the house, one of whom is to be a mem- 
ber who had been ordered to prepare and bring in the biU, and 
the other a member not locaUy interested. 

2450. Opposed private biUs are referred to a chairman and four 
members not locally or otherwise interested, to whom are added, in 
certain cases, members representing the county or borough, to 
which the bill or bills specially relate. The members, who are 
added in respect of local representation, however, are merely en- 
titled to attend and take part in the proceedings of the committee 
upon the biU, in respect of which they are added, but have no vote 
upon any question that may arise.^ 

2451. Every railway bill committee is to consist of a chairman 
and four members not locally or otherwise interested in the bdl or 
bills referred to them. Every unopposed railway biU, which has 
not been included in a group, or has been "withdra-^m from a group, 
is referred in the same manner as other unopposed private biUs.^ 

2452. The committee of selection give each member of a com- 
mittee so appointed, fourteen days notice, at least, by publication 
in the votes, and by letter, of the week in which he is required to 
be in attendance, to serve as a member not locally interested ; and 
they also give him sufficient notice of his appointment as the mem- . 
ber of a committee, and transmit to every member not locally or 
otherwise interested, a blanlv form of declaration, which he is to 
return forthwith, properly filled up and signed, " that his constitu- 
ents have no local interest, and that he has no personal interest " in 
the bill ; " and that he wiU never vote on any question which may 
arise, vidthout having duly heard and attended to the evidence re- 
lating thereto." No committee can proceed to business until this 
declaration has been made and signed by each of the members ; 
and if any member neglects to sign and return it in due time, or 
does not send a sufficient excuse, the committee of selection report 
his name to the house, and he wiU be ordered to attend the com- 
mittee on the bill. K a member, who has signed this declaratiou, 

1 May, 523. s jiay, 523. 

2 May, 524. 



Chap. IV.] commitment of private bill. 951 

should subsequently discover that he has a direct pecuniary interest 
in a bill, or in a company who are petitioners against a bill, he 
states the fact, and upon the motion of the chairman, he will be 
discharged by the house from fm-ther attendance on the commit- 
tee.i 

2453. K the excuse of a member is not deemed satisfactory by 
the committee, they require him to serve ; in which case, his attend- 
ance becomes obligatory, and, if necessary, will be enforced by the 
house. At any time before the meeting of a committee on a bill, 
the committee of selection may substitute one member for another, 
whom they shall deem it proper to excuse. But after the commit- 
tee has met, members can only be discharged from attendance, and 
other members added to the committee, by order of the house.^ 

2454. All questions before committees on private bills are de- 
cided by the majority of voices, including the voice of the chair- 
man ; and, whenever the voices are equal, the chairman has a 
second or casting vote. But, in applying this rule, none but select- 
ed members are entitled to vote ; members added in respect of local 
representation, being only entitled to attend and participate in the 
proceedings of the committee, without voting. If the chairman is 
absent at any time, the member next in rotation on the list of mem- 
bers, not locally or otherwise interested, who is present, acts as 
chairman.'^ 

2455. An interval of fourteen days is required to elapse between 
the second reading of every private bill, and the first sitting of the 
committee, except in the case of divorce and some other bills, in 
reference to which the interval is less. Subject to this general reg- 
ulation, the committee of selection fixes the time for holding the 
first sitting of the committee on every private bill ; which, however, 
is not to be appointed, until the chairman of the committee of ways 
and means has certified that the bill is so far approved of, as to be 
ready for tlie consideration of the committee.* 

2456. Before the sitting of committees on private bills, the 
agents of the promoters are requested to lay copies of them before 
the chairman of the ways and means, whose duty it is, with the 
assistance of the speaker's counsel, to examine all private bills, 
whether opposed or unopposed, and to call the attention of the 
house, and, also, if he thinks fit, of the chairman of the committee, 
on every opposed private bill, to all points which may appear to 

» May, 524, 529, 530. « May, 523. 

« Mav. 534, 535. < May, 526, 529. 



952 LEGISLATIVE A-SSEMELIES. [PaRT VIIl. 

him to require it ; and, in the case of unopposed bUls, he is also to 
report any special circumstances. During this interval, amend- 
ments are suggested or required by the authorities in both houses, 
which are agreed to at once by the promoters, or after discussion, 
are insisted upon, varied, modified, or dispensed with. In the 
mean time, also, the promoters endeavor, by proposing amendments 
of then own, to conciliate parties who are interested, and to avert 
opposition. They are, besides, frequently in communication with 
public boards or government departments, by whom amendments 
are sometimes proposed ; and who, again, are in communication 
with the chairman of the ways and means, or with the chairman 
of the lords' committees.^ 

2457. When the amendments consequent upon these various 
proceedings have been introduced, the printed bill, with all the pro- 
posed amendments and clauses inserted, in manuscript, is in a con- 
dition to be submitted to the committee. But before the meeting 
of the committee, at least one clear day, the agent of the promoters 
is required to deposit in the private biU office a filled up copy of the 
bill signed by himself, as proposed to be submitted to the commit- 
tee. A similar copy is also required to be laid before the chairman 
of ways and means, three clear days before the meeting of the 
committee.^ 

2458. K, at the time appointed for the sitting of the committee, 
three of the members not interested are present, the committee may 
proceed, but not with a less number, without the special leave of 
the house ; and so soon after the expiration of ten minutes from 
the time appointed for the fijst sitting of a committee on an op- 
posed bill, (not being a railway bill,) or three at least of such mem- 
bers are present, the chairman proceeds to take the chair. But no 
member of a railway committee, nor any of the five members, not 
locally or otherwise interested, of the committee on any other pri- 
vate bill, may absent himself, except in case of sickness, or by order 
of the house.^ 

2459. If, at any time, a quorum of three should not be present, 
the chairman suspends the proceedings, and if, at the expiration of 
an hour, there should still be less than three members, the commit- 
tee is adjourned to the next day on which the house sits. Members 
absenting themselves are reported to the house, at its next sitting, 
when they are either directed to attend at the next sitting of the 
committee, or, if their absence has been occasioned by sickness, 

1 Mar, 526, 527, ^ May, 528, 529. s May, 530. 



Chap. IV.] commitment of private bill. 953 

domestic affliction, or other sufficient cause, they are excused from 
further attendance. If, after a committee has been formed, a quo- 
rum of members cannot attend, the chairman reports the circum- 
stance to the house, when the mem.bers still remaining, will be 
enabled to proceed, or such other orders wiU be made as the house 
may deem necessary.^ 

2460. Petitions in favor of, or against, private bills, are presented 
to the house, not in the usual way, but by being deposited in the 
private biU office, by a member, party, or agent ; and every petition, 
which has been thus deposited not later than seven clear days after 
the second reading, stands referred to the committee on the biU, 
without any distinct reference from the house ; and, subject to the 
rules and orders of the house, petitioners who have prayed to be 
heard by themselves, their counsel, or agents, are to be heard upon 
their petition accordingly, if they think fit ; and counsel heard in 
favor of the bill against such petition.^ 

2461. Petitioners will not be heard before the committee, miless 
their petition is prepared and signed in strict conformity with the 
rules and orders of the house, and has been deposited within the 
time limited, except in cases in which the petitioners complain of 
some matter which may have arisen in committee, or which may 
be contained in the amendments as proposed in the filled up biU.^ 
If a petition is presented after the time Hmited, the only mode by 
which the petitioners can obtain a hearing, is by presenting a peti- 
tion, praying that the standing orders may be dispensed with in 
their case, and that they may be heard by the committee. The 
petition wiU be referred to the standing orders committee ; and if 
the petitionerg are able to show any special circumstances, which 
entitle them to indulgence, and particularly that they have not 
been guilty of negligence, the standing orders will be dispensed 
with.* 

2462. If a petition does not distinctly specify the grounds, on 
which the petitioners object to the provisions, or any of them, of a 
bill, it wiU not be considered. The petitioners can only be heard 
on the grounds so stated ; and if not specified with sufficient accu- 
racy, the committee may direct a more specifiic statement to be 
given in writing, but limited to the grounds of objection which had 
been insufficiently stated.-^ 

2463. If no parties appear on the petitions against an opposed 

» May, 532. 



> May, 530. 


3 May, 581, 532. 


s May, 531. 


* Mav, 632. 




80* 



954 LEGISLATIVE ASSEMBLIES. [PaRT VIIL 

bill, or having appeared, withdraw theu' opposition before the evi- 
dence of the promoters is commenced, the committee is required to 
refer back the bill to the committee of selection, who deal with it 
as an unopposed bill ; and, in the case of a railway bill, the com- 
m.ittee may refer the bill back to the committee of selection, under 
the same circumstances, if they think fit, but otherwise may con- 
sider the bill, though unopposed. And, on the other hand, if the 
chairman of the ways and means reports that any unopposed bill 
should, in his opinion, be treated as opposed, it is again referred to 
the committee of selection, and dealt ^^dth accordingly.^ 

2464. It is the duty of every committee to take care that the 
several provisions, required by the standing orders of the house to 
be inserted in private bills, are included in them, wherever they are 
applicable. Some of these provisions relate to private bills gener- 
ally, and others to particular classes of bills. Of the former, are 
clauses for compelling the payment of subscriptions ; for the safe 
custody of moneys, and the auditing of accounts, ii> bills authoriz- 
ing the levy of fees, tolls, or other rates of charge ; and for defining 
the level of roads, and otherwise protecting them, when altered by 
the construction of any pubKc work.^ 

2465. The functions and proceedings of committees on unop- 
posed bills are somewhat difierent from those of other committees. 
The chairman of the ways and means, and one of the two other 
naembers of the committee, are a quorum ; and, unless they are of 
opinion that a bill refen-ed to them should be treated as an opposed 
bill, they proceed to consider the preamble, and aU the provisions 
of the bill, and take care that they are conformable to the standing 
orders. The chief responsibihty is imposed upon the chairman, 
who, bemg an officer of the house, as well as a member, is in- 
trusted, as already stated, with the special duty of examining, as- 
sisted by the speaker's counsel, every private bill, whether opposed 
or unopposed. For this purpose, a copy of the bill, signed by the 
agent, as proposed to be submitted to the committee, has been al- 
ready laid before the chairman and counsel ; and, at the first meet- 
ing of the committee, is ordered to be laid before each member.^ 

2466. There being no opponents of the bill before the commit- 
tee, the promoters have only to prove the preamble, and satisfy the 
committee of the propriety of the several provisions ; that aU the 
clauses required by the standing orders are inserted in the bill ; and 

1 May, 533. 8 May, 534. 

2 May, 534. 



Chap. IV.] commitment of private bill. 955 

that such standing orders as must be proved before the committee 
have been complied with. But if extensive alterations are pro- 
posed to be made in the original bill annexed to the petition, it is 
liable to be withdravi^n, by order of the house, on the report of the 
chairman. If it should appear that the bill ought to be treated as 
an opposed bill, the chairman reports his opinion to the house, and 
the bill is thereupon referred to the committee of selection, who 
deal with it accordingly.^ 

2467. There are various orders of the house, which are binding 
upon all committees on private bills. Thus the names of the mem- 
bers attending each committee, are to be entered by the committee 
clerk in the minutes ; and when a division takes place, the clerk 
takes down the names of the members, distinguishing on which 
side of the question they respectively vote ; and such lists are to be 
given iji, with the report, to the house.^ 

2468. So, too, the committee is precluded from examining into 
the compliance with such standing orders as are directed to be 
proved before the examiners of petitions for private bills, unless 
they have received an instruction from the house to that effect. 
Such an order is only given, when the house, on the report of the 
standing orders' committee, allows parties to proceed with their bill, 
on complying with certain standing orders which they had pre- 
viously neglected. In such cases, the committee on the bill in- 
quires whether the orders have been complied with, instead of 
referring that inquiry to the examiner of petitions, but when any 
special inquiry, in reference to the standing orders, is necessary, the 
matter is referred to the examiner instead of the committee ; and 
the examiner's certificate is produced before the committee.^ 

2469. Among the orders, which relate only to particular classes or 
descriptions of biUs, those which relate to railway bills have been 
the most important in modern times. To these, the attention of 
the committee on every railway bill, and of the promoters and op- 
ponents of such bills, should be directed. By these orders, it is, in 
the first place, required, that particular matters should come under 
the investigation, and be reported upon, by the committee, as, for 
example, as to the sufficiency of the subscribers, the proposed capi- 
tal, the amount of shares subscribed for, and deposits paid, the en- 
gineering particulars of the line, the names of the engineers exam- 
ined as witnesses for and against the bUl, the main allegations of 

1 May, 534. 8 May, 535, 536. 

8 May, 535. 



956 LEGISLATIVE ASSEMBLIES. [PaRT VIII. 

every petition in opposition to the preamble of the bill, or any of 
its clauses, and, generally, as to the fitness, in an engineering point 
of view, of the projected Line of railway ; secondly, certain fixed 
principles of legislation are laid down, from which the committee, 
except in special cases, will not be justified in departing, relating, 
for example, to the authority of the company to raise money by 
loan or mortgage, to the level of any turnpike or other road which 
is proposed to be altered in making a railway, to the authority to 
construct a dock, pier, harbor, or ferry, to the fixing of the tolls and 
rates of charge for the conveyance of goods and passengers ; and, 
thirdly, particular clauses are required to be inserted, as, for exam- 
ple, relating to preference to be granted to any shares or stock in 
the payment of interest or dividends, prohibiting the payment of 
capital for the construction of another railway, providing that the 
railway shall not be exempted from the provisions of any general 
acts, or from future revision by parliament of the maximum rates 
of fares and charges previously authorized.^ 

2470. The committee on a biU for confirming letters patent, are 
to see, in compliance with the standing orders, that there is a true 
copy of the letters patent annexed to the bill. There are several 
standing orders, relating specially to biUs for the inclosure and 
drainage of lands, compliance mth which is to be examined into 
and enforced by the committees, such as the proof of notices, and 
the consent of the lord of the manor, or of the owners or occupiers 
of the lands, and the provision in inclosure bills for leaving a space 
open for exercise and recreation.^ 

2471. K the committee on any private biU should report it to the 
house, -v^dthout proper provisions made in it, in conformity with the 
standing orders, of the description above alluded to, it is the duty 
of the chairman of the ways and means to inform the house of the 
fact, or to signify it in writing to the speaker, on or before the con- 
sideration of the bill ; upon which the house will make such orders 
as it shall think fit.^ 



Section IL Of the PiiocEEDrisrGS of Committees on opposed 

Bills. 

2472. The proceedings of committees upon opposed private 
biQs, which are regulated partly by the usage of parliament, 

' May, 536, 537, 538, 539, 540. » May, 541. 

2 May, 540, 541. 



Chap. IV.] commitment of private bill. 957 

and partly by standing orders of the house, are ordinarily the 
same as those of other select committees, which have been ex- 
plained elsewhere.^ The questions for the consideration of the 
committee are moved in the same manner as in the house, and are 
put by the chairman, and determined by the vote of a majority as 
already mentioned. 

2473. When counsel are addressing the committee, or while wit- 
nesses are under examination, the committee room is an open 
court ; but when the committee is about to deliberate, all persons 
present, counsel, agents, witnesses, and strangers, are ordered to 
withckaw and the committee sits with closed doors. When it 
has decided the question, the doors are again opened, and the 
chairman acquaints the parties, if the matter concerns them, with 
the determination of the committee. 

2474. The first proceeding on an opposed bill, is to call in all 
the parties. The counsel in support of the bill appear before the 
committee ; the petitions against the bill, in which the petitioners 
pray to be heard, are read by the committee clerk ; and the counsel 
or agents in support of them present themselves.^ K no parties, 
counsel, or agents, appear when a petition is read, the opposition 
on the part of the petitioners is held to be abandoned ; and, unless 
they state their intention to oppose the bill, before the case ig\ 
opened, they are not afterwards entitled to be heard, without special 
leave from the committee. 

2475. When the parties are before the committee, the senior 
counsel for the promoters of the bill opens their case, commencing 
wdth the preamble, which in the case of a private bill, unlike the 
practice in regard to public bills, is first considered. If the pre- 
amble is opposed, the counsel addresses himself more particularly 
upon the general expediency of the biU, and then calls witnesses to 
prove the truth of the allegations contained in the preamble. The 
witnesses may be cross-examined on behalf of petitioners against the 
preamble, but not as to the general case, on behalf of parties object- 
ing only to certain provisions in the bill. When all the witnesses 
for the preamble have been examined, the case of the promoters is 
closed, unless their counsel has waived the right to an opening 
speech.'^ 



» See Part VII. Sec. 2. apply to all committees, Hans. (3), Vol. 62, p. 

2 A standinfc order of January 3d, 1701, di- 311; but by its terms, it would appear to be 

rected the committee of privilege and elec- confined to a single committee not now in 

tions to " admit only two counsels of a side, existence; and, in practice, it is not observed, 

•n any cause before them," (13 Comm. Jour. s May, 542. 
648); and this order has been supposed to 



958 LEGISLATIVE ASSEMBLIES. [PaET VIII 

2476. All the petitions against a biU, Avhich have been deposited 
"v\"ithin the time limited, stand referred to the committee by the 
general order of the house ; but no petitioners are entitled to be 
heard, unless they have prayed to be heard by themselves, their 
counsel or agents, nor' unless they have a locus standi^ according to 
the rules and usages of parliament ; nor unless theu' petition, and 
the proceedings thereupon, are otherwise in conformity with the 
rules and orders of the house.^ 

2477. Some petitions pray to be heard against the preamble and 
clauses of the bill ; some against certain clauses only ; and others 
pray for the insertion of protective clauses, or for composition for 
damage, which will arise under the bill. Unless the petitioners 
pray to be heard against the preamble, they will not be entitled to 
be heard, nor to examine any of the promoters' witnesses, upon the 
general case, nor otherwise to appear in the proceedings of the 
committee, until the preamble has been disposed of. Nor will a 
general prayer against the preamble entitle a petitioner to be heard 
against it, if his interest is merely affected by certain clauses of the 
bm. The proper time for urging objections to parties being heard 
against the preamble, is w^hen their counsel or agent first rises to 
put a question to a witness, or to address any observations to the 
committee. This is also the proper time for objecting, that peti- 
tioners are not entitled to be heard on any other grounds.^ 

2478. Parties are said to have no locus standi before a committee, 
when their property or interests are not directly and specially 
affected by the biU, or when, for other reasons, they are precluded 
from opposing it. The committee determine, according to the cir- 
cumstances of each case, whether the petitioners have such an inter- 
est as to entitle them to be heard ; the circumstances varying, of 
course, according to the special relations of the petitioners, and the 
nature and objects of the bill.^ 

2479. It has been held generally, as a parHamentary rule, that 
competition does not confer a locus standi; but, of late years, this 
rule has been considerably relaxed, and numerous exceptions have, 
in practice, been admitted. The proprietors of an existing railway 
have no right to be heard, according to the rule, upon their petition 
against another line, on the ground, that the profits of their under- 
taking will be diminished. But if it is proposed to take the least 
portion of the land belonging to the company, they then have a 

» May, 543. 8 May, 544. 

2 May, 544. 



Chap. IV.] commitment of private bill. 959 

locus standi before the committee. The result of this application 
of the rule has been, that most of the great parliamentary contests 
between railway companies have been conducted in the names of 
land-owners ; each company having obtained the signatures of 
land-owners to petitions against the scheme of the other, have in- 
structed counsel to appear upon them, and have defrayed all the 
costs of the nominal petitioners. The rule has been since relaxed 
in favor of competing railway schemes referred to the same com- 
mittee, and also in favor of the proprietors of canals or navigations. 
In recent cases, too, the rule has not been enforced, in its applica- 
tion to the right of an existing gas or water company to oppose 
the establishment of a new company proposing to supply the same 
district.^ 

2480. Another ground of objection to the locus standi of peti- 
tioners is, that they are shareholders or members of some corporate 
body by whom the bill is promoted, and that being legally bound 
by the acts of the majority, they are precluded from being heard as 
individual petitioners. This rule has, however, been departed from, 
in the case of dissentient shareholders, as, for example, preference 
sh-areholders, who have some interest different from that of the gen- 
eral body. In the house of lords, a different rule prevails.- 

2181. Objections may also be taken, that a petition is informal, 
according to the rules and orders of the house applicable to peti- 
tions, generally, or as specially applicable to petitions against pri- 
vate bills ; as, for example, where the seal attached to the petition 
of a company is not the corporate seal ; and, in such case, when the 
ground of objection is proved, all the evidence in support of the 
petition is expunged.'^ 

2482. It may also be objected, that petitions do not distinctly 
specify the grounds on which the petitioners object to the bill. The 
committee may, however, direct a more specific statement of ob- 
jections to be given in, limited to the grounds of objection which 
had been inaccurately stated. But if the committee determines, 
that the grounds so stated do not amount to an objection to the 
preamble to the bill, no further specification can avail the peti- 
tioners.^ 

2483. When counsel are allowed to be heard against the pre- 
amble, one of them either opens the case of the petitioners, or re- 
serves his speech untU after the evidence. Witnesses may then be 

1 May, 544. 3 May. 546. 

« May, 545, 546. * May, 546 



960 LEaiSLATIVE ASSEMBLIES. [PaET VIIL 

called and examined, in support of the allegations in the petition, 
cross-examined by the counsel for the bill, and reexamined by the 
counsel for the petitioners. When the evidence against the pre- 
amble is concluded, the case of the petitioners is closed, unless an 
opening speech has been waived ; and the senior counsel for the 
bill replies on the whole case. If the petitioners do not examine 
witnesses, the counsel for the bill has no right to a reply ; but in 
some special cases, where new matter has been introduced on the 
other side, (as, for example, an act of parliament or precedents,) a 
reply, strictly confined to such new matter, has been allowed. 
When there are numerous parties appearing on separate interests, 
the committee makes such arrangements, as they think fit, for hear- 
ing them.^ 

2484. When the arguments and evidence upon the preamble 
have been heard, the committee room is cleared, and a question is 
put, " That the preamble has been proved," which is resolved in 
the affirmative or negative, as the case may be.^ 

2485. If the question is affirmed, the committee calls in the par- 
ties, and go through the bill clause by clause, and fill up the blanks ; 
and when petitions have been presented against a clause, or pro- 
posing amendments, the parties are heard in support of their ob- 
jections or amendments, as the clauses to which they relate come 
before the committee ; but clauses may be postponed and consider- 
ed at a later period in the proceedings, if the committee thinks fit.^ 

2486. When all the clauses of a bill have been agreed upon, 
ne^v clauses may be offered either by members of the committee or 
by the parties. It must be borne in mind, however, that the com- 
mittee may not admit clauses or amendments which are not within 
the order of leave ; or which are not authorized by a previous com- 
pliance with the standing orders applicable to them, unless the par- 
ties have received permission from the house to introduce certain 
additional provisions in compliance with petitions therefor.^ 

2487. If the proof of the preamble is negatived, the committee 
reports at once to the house, " That the preamble has not been 
proved to their satisfaction." This is the only report required to be 
made ; and although the house had affirmed the principle of the 
bill on the second reading, no reasons are given by the committee 
for thus practically reversing the judgment of the house.'^ In a 
special case, however, the committee on a private bill was ordered 



1 May, 547. ^ jjay, 548. 5 May, 548. 

« May, 547. * May, 548. 



Chap. IV.] commitment of private bill. 961 

by the house to reassemble, " for the purpose of reporting specially 
the preamble, and the evidence and reasons in detail, on which 
they came to the resolution that the preamble had not been 
proved." ^ 

2488. No alterations were formerly admissible in the preamble 
of a private bill ; but since 1843, they have been allowed ; subject 
to the same restriction as in the case of other amendments, that 
nothing shall be introduced inconsistent ^\''ith the order of leave, or 
with the standing orders applicable to the bill. Such amendments 
are, however, to be specially reported.^ 



Section III. Of the Duties of the Committee as to Reporting 
their Proceedings. 

2489. The duties of the chairman and committee in recording 
the proceedings, and reporting them to the house, as explained in 
the standing orders, require, that every plan and book of reference 
produced in evidence shall be signed by the chairman and deposited 
in the private biU office ; that the chahman shall sign a printed 
copy of the bill (called the committee bill) on which the amend- 
ments are fairly written; that the chairman shall report that the 
allegations of the bill have been examined, and whether the parties 
concerned (whose consent is required) have given their consent to 
the satisfaction of the committee ; that the committee shall report 
the bill to the house, whether they have or have not agreed to the 
preamble, or gone through the several clauses or any of them, that 
when any alteration shall have been made in the preamble, such 
alteration, together with the ground of making it, shall be specially 
stated in the report ; and that the minutes of the committee be 
brought up and laid on the table with the report of the bill.^ 

2490. If matters should arise in the committee, apart from the 
consideration of the bill referred to them, which they desire to re- 
port to the house, the chairman, by direction of the committee, 
should move the house that leave be given to the committee to 
make a special report. The house may also instruct the committee 
to make a special report.* 

1 Comm. Jour. XCL 306. lines of railway to Brighton, had been referred 

* May, 548. to the same committee : when an unprece- 

* May, 549. dented contest arose among the promoters of 

* ' A case of a very unusual character oc- the rival lines, and at length it was appre- 
currcd in 1837, which deserves particular hended that the preamble of each bill would 
Botice. The bill>; for making four distinct be negatived, in succession, by the combina- 

til 



962 LEGISLATIVE ASSEMBLIES. [PaRT VIII. 

2491. Committees on private bills have no power conferred upon 
them of sending for persons, papers, and records. The parties are 
generally able to secure the attendance of their Vvitnesses, wdthout 
apph'ing to the committee ; but when they desire to compel the 
attendance of an adverse or un^dhing witness, they should apply 
to the committee, who, when satisfied that the party has used due 
diligence, and that the witness is material to the inquiry, direct a 
special report to be made to the house ; upon which an order is 
made by the house, to obKge the witness to attend and give evi- 
dence before the committee. 

2492. Besides making the prescribed form of report, or special 
reports in particular cases, committees have had leave given them 
to report the minutes of evidence, which have also been ordered to 
be printed, at the expense of the parties, if they think fit, and even 
in special cases, at the expense of the house ; or have been referred 
to the^ committee on another bill.^ 

2493. K parties acquaint the committee, that they do not desire 
to proceed farther with the biUs, that fact is reported to the house, 
and the biU will be ordered to be withdravi'n. On one occasion, a 
report was made, that from the protracted examination of wit- 
nesses, the promoters desired leave to withdraw their bill, and that 
the committee had instructed their chairman to move for leave to 
lay the minutes of e^ddence on the table of the house.^ 

2494. It is the duty of every committee to report to the house 
the biU that has been committed to them, and not by long adjourn- 
ments, or by an informal discontinuance of their sittings, to with- 
hold from the house the result of their proceedings. K any at- 
tempt of this nature is made to defeat a biU, the house wih inter- 
fere to prevent it, by directing the committee to meet immediately, 
and proceed with the biU referred to them. 

2495. AVhenever a committee adjourns, the committee clerk is 
required to give notice in writing, to the clerks in the private bill 
office, of the day and hour to which the committee is adjourned;^ 

tion of three out of the four parties against ble to decide upon the merits of the compet- 
each of the lines in which the three were not ing lines, agreed to address the crown to refer 
interested, and on which the committee would the several statements of engineering particu- 
haye to determine separately. This result lars to a military engineer. lb. 417. On the 
was prevented by an instruction to the com- report of the engineer appointed, in answer 
mittee ' to make a special report of the engi- to this address, the house instructed the 
neering particulars of each of the lines,' to committee to hear the case of the land-own- 
enable the house to determine which to send ers upon the direct line. lb. 519 ; May, 549. 
back for the purpose of having the land-own- i Slay, 551. 
ers heard and the clauses settled." Comm. - Jlay, 531. 
Jour. XCII. 356. This special report was ^ May, 552. 
made accordingly ; but the house being una- 



Chap. V.] eeport of committee on private bill. 963 

2496. If a committee adjourns without naming another day for 
resuming its sittings ; or if any informality in the notices prevents 
the committee from sitting ; or if, from the absence of a quorum, 
the committee is unable to proceed to business, or to adjourn to a 
future day ; it has no power of reassembling, without an order from 
the house ; and the committee is said to be revived, when this inter- 
vention of the house takes place. The form in which the order is 
usually made is, " that the committee be revived, and that leave be 
given to sit and proceed on a certain day." To avoid an irregu- 
larity in the adjournment, care should be taken to appoint a day 
for the next meeting, before the proceedings of the committee are 
interrupted by the notice of the sergeant-at-arms, that the speaker 
is at prayers.^ 



CHAPTER FIFTH. 

OF THE REPORT OF THE COMMITTEE, AND PROCEEDINGS THEREON; 
RECOMMITMENT; THIRD READING; PASSING; AMENDMENTS BE- 
TWEEN THE TWO HOUSES. 

2497. When the report has been made out and agreed to by the 
committee, the committee clerk is required to deliver in at the pri- 
vate bill office, a printed copy of the biU, with the written amend- 
ments made by the committee ; and with the several clauses added 
by the committee, regularly marked in those parts of the bill in 
which they are to be inserted. In strict conformity with this au- 
thenticated copy, the bill, as amended by the' committee, is required 
by the standing orders to be printed at the expense of the parties, 
unless the committee report that the amendments are merely verbal 
or literal. When printed, they must be delivered to the door-keep- 
ers, three clear days at least before the consideration of the report ; 
but these copies are not to be delivered before the report of the biU 
is made to the house.^ 

2498. In some cases, the alterations made by the committee have 
been so numerous and important, as almost to constitute the bill a 
different measure from that originally brought before the house. In 
Buch cases, the house has sometimes required the bill to be with- 

1 May, 552. » May, fi52. 



964 LEGISLATIVE ASSEMBLIES. [PaRT VIIL 

drawn, and another bill presented, which has been referred to the 
examiners. But unless the case is one of great irregularity, the 
later and better practice has been, to refer the bill, as amended, " to 
the examiner, to inquu-e whether the amendments involve any in- 
fraction of the standing orders." If the examiner reports, that 
there is no infraction of the standing orders, the biU proceeds, with- 
out further interruption ; but if he reports, that there has been such 
an infraction, his report, together with the bill, will be referred to 
the standing orders' committee.^ 

2499. The committee makes its report to the house, in the same 
manner as other select committees ; and the proceedings on the 
report, with certain exceptions, which will be briefly stated, are sub- 
stantially the same as in other cases. When the report is first 
made, it is ordered to lie on the table, together with the bill, (if a 
railway bill, or a bill amended in committee,) and is not taken into 
consideration until a future day ; but if not amended in committee, 
the bill is ordered to be read a third time. The bill reported to the 
house is a duplicate copy of the committee bill, including all the 
amendments and clauses agreed to by the committee. On or be- 
fore the consideration of the bill, the chairman of ways and means 
is also to inform the house, or signify in writing to the speaker, 
whether the bill contains the several provisions required by the 
standing orders ; and, until he has done so, the bill will not be con- 
sidered. One clear day's notice, in writing, must also be given by 
the agent for the bill, to the clerks in the private bill office, of the 
day proposed for the report, and also for the further consideration 
of the report when laid on the table. 

2500. When it is intended to bring up any clause, or to propose 
any amendment on the report, or on the consideration of the report, 
or on the third reading of the bill, notice must be given in the pri- 
vate bill office one clear day previously. On the consideration of 
the report, the house may agree or disagree to the amendments of 
the committee, and may introduce new clauses or amendments ; 
but no clause or amendment may then be offered, or on the third 
reading, unless the chairman of ways and means has informed the 
house, or signified in writing to the speaker, whether, in his opin- 
ion, it is such as ought (or ought not) to be entertained by the 
house, without referring it to the standing orders committee, and 
the clause or amendment is to be printed at the expense of the par- 
ties ; and when the proposition is to amend a clause, it is to be 

1 May, 553. 



Chap. V.] report of committee on private bill. 965 

printed in full, with every addition or substitution in different type, 
and the omissions therefrom in brackets and underlined. And on 
the day on which notice is given, the clause or amendment is to be 
laid before the chairman of the ways and means and the speaker's 
counsel.! 

2501. If a clause or amendment is referred to the standing orders 
committee, there can be no further proceeding until its report has 
been brought up. When the clause or amendment has been offered 
on the consideration of the bill, it reports whether it should be 
adopted by the house or not, or whether the bill should be recom- 
mitted. If offered on the third reading, it merely reports whether it 
ought (or ought not) to be adopted by the house at that stage ; as 
it is then too late to recommit the bill.^ 

2502. When biUs are recommitted, they are referred to the for- 
mer committee ; and no member can then sit, unless he shall have 
been duly qualified to serve upon the original committee on the 
bill ; or be added by the house. The committee cannot sit, unless 
the agent has given three clear days notice, in writing, at the pri- 
vate bill office, of the day and hour appointed for their meeting ; 
and, a filled up copy of the bill, as proposed to be submitted to the 
committee, on the recommital, is to be deposited in the private bill 
office one clear day before the meeting of the committee. Unless 
the bill is recommitted by the house, with express reference to par- 
ticular provisions, the whole bill is open to reconsideration by the 
committee.^ 

2503. When amendments are made by the house, on the report 
or third reading, or when amendments of the other house are agreed 
to, they are entered by one of the clerks in the private bill office, 
upon the printed copy of the bill, as amended by the committee ; 
and such copy is signed by the clerk, as amended, and preserved iu 
the office.^ 

2504. One clear day's notice, in writing, must be given by the 
agent for the biU, to the clerks in the private bill office, of the day 
proposed for the third reading ; but this notice is not to be given 
until after the bill has been ordered to be read a third time. The 
proceedings on the« third reading of private bills are the same as in 
the case of pubKc bills ; but if clauses are offered, or amendments 
proposed, they are subject to the rules already stated in regard to 
the report, or further consideration of the report. If the bill is 

1 Jlav, 554. » May, 555. 

* Mav, 555. * May, 655. 

81* 



966 LEGISLATIVE ASSEMBLIES. [PaET VIII. 

finally approved by the house, with the alterations, if any, made 
subsequently to the second reading, it is passed and sent to the 
house of lords. 

2505. No private biU is permitted to be sent up to the house of 
lords, until a certificate is indorsed on the fau' printed bill, and 
signed by the proper officers, declaring that such printed bill has 
been examined, and agrees with the biU as read a third time.^ 

2506. The foregoing is an outline of the proceedings, which take 
place in the house of commons, on the passage of a private biU 
originally introduced therein through its several stages. Two gen- 
eral rules are applicable in all cases, namely, first, " That no private 
bill may pass through two stages on one and the same day ; " and, 
second, " That (except in cases of urgent and pressing necessity) no 
motion may be made to dispense with any sessional or standing 
order of the house, without due notice thereof. " ^ 

2507. The proceedings between the two houses, in regard to 
amendments to private bills, differ in no respect fi'om those which 
have been akeady described, with reference to public bUls. When 
the amendments made by the lords are to be taken into considera- 
tion by the commons, notice is requhed to be given in the private 
bill office, on the previous day ; but this notice cannot be given 
until the day after that on which the bill has been received from 
the lords. K any amendments are proposed thereto, a similar no- 
tice is to be given, and a copy of such amendments to be deposited. 
A copy is also to be laid before the chairman of the ways and 
means, and the speaker's counsel, before two o'clock on the day 
previous to that on which they are to be considered. And as the 
lords' amendments may relate to matiers which might be considered 
to involve an infringement of the privileges of the commons, and 
the amendments proposed by the latter may be in the natm-e of 
consequential amendments, the speaker's sanction should be ob- 
tained before they are proceeded with. Before lords' amendments 
are taken into consideration, they are printed at the expense of the 
parties, and circulated -with the votes ; and when a clause has been 
amended, or a lords' amendment is proposed to be amended, it is 
printed at length, with every addition or substitution in different 
types, and omissions included in brackets, and underlined.^ 

2508. In case a private bill should not be proceeded with in the 
house of lords, in consequence of amendments having been made 

1 May, 556. « May, 557. 

« May, 556. 



Chap. VL] proceedings in the lords on private bills. 967 

there, which infringe the privileges of the commons, the same pro- 
ceedings are adopted as in the case of public bills. A committee 
is appointed to search the lords' journals, of which notice is to be 
given by the agent, in the committee clerk's office; and, on the 
report of the committee, another bill will be ordered, including 
the amendments made by the lords.^ 



CHAPTER SIXTH. 

DIEFEEENCES IN THE MODES OF PROCEEDING BETWEEN THE TWO 

HOUSES. 

2509. Having thus briefly stated the proceedings, with regard to 
private bills, in the house of commons, it now remains to mention 
some particulars, in which the proceedings of the two houses 
differ. As a consequence of the fundamental principle of the 
English constitution, that all bills imposing a charge upon the peo- 
ple must originate in the house of commons, it is necessary, that 
every private bill, which contains provisions for rates, tolls, penal- 
ties, or other charges, (under which description, the greater number 
of private bills is embraced,) should be introduced and first passed 
in the house of commons. According to this rule, some few of the 
private bills included in the first class may occasionally originate in 
the lords, because rates, tolls, or duties are not essential to their 
operation ; but all biUs in the second class must be brought into 
the commons on petition, and the others are, with very rare excep- 
tions, also commenced in the same house."^ On the other hand, the 
lords claim that all bills for the restitution of honors and in blood 
should commence with them. Bills, which, in practice, are first 
brought into the house of lords, are estate, naturalization, name, 
and divorce bills, and such as relate to the peerage.^ 

2510. The progress of a bill through the lords, after it has passed 
the commons, is much facilitated by the practice of laying the bill 
before the chairman of the lords' committees, and his counsel, 
(answering to the speaker's counsel in the commons,) and giving 
effect to their observations during the progress of the bill through 

1 May, 557. « May, 658. 

» May, 557. 



968 LEGISLATIVE ASSEMBLIES. [PaET VIII, 

the commons. The amendments suggested in the lords are thus 
embodied with the amendments, before the bill has passed the 
commons ; and unless the biU should be opposed, its progress 
through the lords is at once easy and expeditious. Another ad^^an- 
tage of this mode of amending a bill, as it were, by anticipation, 
is, that numerous amendments may then be conveniently intro- 
duced, Avhich could not be made by the lords, without infringing 
the privilege of the commons.^ 

2511. The lords, having power to consult the judges in matters 
of law, require that petitions presented in that house, for the pass- 
ing of estate biHs and biUs of a similar character received from the 
commons, shall be referred to two of the judges in rotation, not 
being lords of parliament, who are to report their opinion, whether 
assuming the allegations of the preamble to be satisfactorily estab- 
lished, it would be reasonable to pass the biU ; and whether the 
provisions are proper for carrying its purposes into effect, and what 
alterations or amendments are necessary. The report of the judges 
is required to be delivered to the chairman of committees. K 
favorable, the bill may then be presented and read a first time ; if 
adverse, the biU is not offered at all ; if the report objects to par- 
ticular provisions, or suggests others, the biU is altered accordingly 
before being presented. In the event of their approving the bill, 
the judges are to sign it ; but, except in special cases, no other 
commons' bills are referred to the judges.^ 

2512. A " committee for standing orders " is appointed at the 
commencement of every session, which combines the functions of 
the examiner of petitions for bills and on standing orders, in the 
commons. This committee consists of forty members, together 
with the chairman of the lords' committees, who is always the 
chairman ; and three lords, including the chairman, are a quorum. 

2513. Before the second reading of any private biU in either of 
the t^^o classes, the bill is referred to the standing order committee, 
before whom compKance with the several standing orders applica- 
ble thereto is required to be proved ; and before whom any parties 
are at liberty to appear and be heard, upon their petition presented 
and referred to the committee, complaining of a non-compliance 
viT-th the standing orders. Statements of proofs are prepared, and 
evidence introduced, in the same form as in the commons, before 
the examiners ; the main differences being, that in the lords affida- 
vits are not received, and that all the witnesses are required to 

1 May, 558. * May, 558, 570. 



('lIAP. VL] PROCEEDII^GS IN THE LORDS ON PRIVATE BILLS. 969 

have been previously sworn at the bar of the house.^ The orders, 
which the promoters of a private bill are required to prove in the 
lords, are, for the most part, similar to those which are established 
in the commons. 

2514. The standing order committee makes a similar report in 
the lords to the report made by the examiners in the commons, and 
no bill included in either of the two classes is read a second 
time before the third day on which the house sits after the bill has 
been reported from the committee for standing orders. The second 
reading, as in the commons, affirms the principle of the biU, and is 
immediately followed by the commitment.^ 

2515. Unopposed bills are referred to " all the lords present this 
day," who are presided over by the chairman of the lords' commit- 
tees, whose duties, in reference to private bills, are similar to those 
of the chairman of the committee on ways and means in the house 
of commons. These open committees may be and are attended by 
any of the lords present ; but the business is, in fact, transacted by 
the chairman, upon w^hom the responsibility is imposed by the 
house. He is assisted in his duties by a counsel attached to his 
office, who previously examines the provisions of every private bill, 
and points out any variance with the standing orders, or the general 
laws of the country. The chairman of committees may, in any 
case, report his opinion to the house, that an unopposed bill ought 
to be proceeded with as an opposed bill ; in which case, it wiU be 
referred to another committee, as if it had been treated as an 
opposed bill in the first instance. 

2516. Every opposed bill is referrted to a select committee of five 
lords, who choose their own chairman. Each member of this com- 
mittee is required to attend during the whole continuance of the 
inquiry, and none but members can take any part in the proceed- 
ings. These committees are appointed by a committee, which is 
named by the house, at the commencement of every session, con- 
sisting of the chairman of committees, and four other lords ; whose 
duty it is, to select and propose to the house the names of the five 
lords, who are to form a select committee for the consideration of 
every opposed private biU. 

2517. The time for the first meeting of the committee is appointed 
by the house, and the attendance of the members is very strictly 
enforced. The duties of the committee on a bill, whether opposed 
or not, and their proceedings, differ in no material point from those 

1 May, 559, 560. '^ May, 563, 564. 



970 LEGISLATIVE ASSEMBLIES. [PaET VIII. 

of committes of the house of commons, which have abeady been 
described, except that in the lords, the T\T.tnesses are examined upon 
oath, previously administered to them at the bar of the house. The 
proceedings upon the report, and on the third reading, are also 
similar. In the event of any disagreement between the houses, in 
reference to amendments, the same forms are observ^ed as in the 
case of public bills.^ 

2518. Li proceedings Tvdth reference to divorce bills, the standing 
orders requne, that the party presenting a petition for such a bill, 
should, pre\dously to presenting the same, produce an official copy 
of the proceedings in the ecclesiastical court, and of a definitive 
sentence of divorce therein, a mensa et thoro, at the suit of such 
party; that if any trial shall have taken place, or any writ of 
inqmry been executed, -^^thin the United Kingdom, relative to the 
alleged cause of divorce, wherein the petitioner shall have been a 
party, a report of the proceedings upon such trial or ^sfxii of inquuy 
shall be laid upon the table of the house, before the bill shall be 
read a second time ; that, upon the second reading of the bill, the 
petitioner shall attend the house, (unless such attendance be spe- 
cially dispensed with,) in order to be examined at the bar, if the house 
shall think fit, as to whether there has been any collusion, directly 
or indhectly, on the part of such pai-t}^, with the other party, or 
with any other person, touching the bill of divorce, or the proceed- 
ings relating to the alleged ground of the same, either at law, or in 
the ecclesiastical com-t, and, whether, at the time of the adultery, 
the parties were living together or separate.- 

2519. The standing orders also provide, that no bill of divorce 
founded on a petition to dissolve a marriage for the cause of adul- 
terv, and to enable the petitioner to many again, shall be received 
in the house, unless it provides, that it shall not be lawful for the 
party, whose marriage vidth the petitioner shall be dissolved, to 
intermarry vidth any ofiending party, on accomit of whose adultery 
with such party, it shall be enacted in the biU that the marriage is 
dissolved. This clause, though required to be inserted in the bill, 
is usually struck out by the committee, except in very peculiar 
cases.'^ 

2520. Notice of the second reading of a divorce bill, with an 
attested copy of the bill, signed by the clerk's assistant, is required 
to be served upon the party, husband or wife, as the case may be, 
against whom the bill is prosecuted, and such service must be 

1 May, 569. = May, 573. s May, 573. 



Chap. VL] proceedings in the lords on private billss. 971 

proved on the second reading ; but, if the party cannot be found, oi 
is in a distant part of the world, service may be made on the agent 
of such party, upon a petition from the agent of the promoter of 
the bill, stating the facts, and proof thereof on oath at the bar. On 
the second reading, counsel are heard and witnesses examined at 
the bar, in support of the bill, whether there are any opposing pe- 
titions or not ; and, after the second reading, the bOl, instead of 
being referred to an open committee, or to a selected committee, 
like other private bills, is committed, like a public bill, to a commit- 
tee of the whole house.^ 

2521. In divorce bills, the proceedings of the ecclesiastical court, 
the sentence of divorce, and the proceedings on the trial, are before 
the house, but are not admitted as evidence to establish the fact of 
adultery. Of that fact, the house may be satisfied by other testi- 
mony offered at the bar ; and if that fails, the bill will not be read 
a second time, even when there is no opposition to it.^ 

2522. When the petitioner for a divorce bill states that the wit- 
nesses necessary to substantiate the allegations of the bill, are in 
India, the speaker of the house in which the petition is presented, 
is authorized by the statute of 1 Geo. IV. c. 101, to issue a warrant 
for the examination of witnesses to the judges of the several su- 
preme courts in India ; and the evidence taken before them, accom- 
panied by a declaration that the examinations have been fairly con- 
ducted, is declared by the same statute to be admissible in either 
house of parliament. When a warrant has been issued under this 
act, the proceedings are suspended untU the return of the same, 
and are not discontinued by any prorogation or dissolution pre- 
viously occurring ; but may be resumed and proceeded upon in a 
subsequent session or parliament, in the same manner, and with 
the like effect, as if no dissolution or prorogation had taken place.^ 

2523. In the house of commons, the manner of dealing with 
divorce bills is peculiar, and differs from the mode of proceeding 
upon other bills. At the commencement of each session, a com- 
mittee is appointed, consisting of nine members, of whom three are 
a quorum, and which is denominated " the select committee on 
divorce bills." To this committee, all divorce bills are referred, 
after the second reading, with an instruction to hear counsel and 
examine witnesses for the bill ; and to hear counsel and examine 
witnesses against the biU, if the parties concerned think fit to be 
heard by counsel, or to produce witnesses. By the terms of the in- 

» May, 574. 2 May, 574. » May, 675 



972 LEGISLATIVE ASSEMBLIES. [PaET VIIL 

struction, the promoter is bound to examine witnesses, or otherwise 
to substantiate the allegations of the bill ; but the party opposing 
is at hberty to be heard or not, as he or she shaU think proper. At 
the same time, a message is sent to the lords, to request them to 
communicate a copy of the minutes of evidence taken before them 
upon the bill, or for the depositions transmitted from Lidia. When 
these are communicated, they are referred to the committee on the 
bill. The latter are made evidence by the statute above mentioned. 
The former seem to be nothing more than memoranda, by w^hich 
the committee may aid themselves in examining the witnesses.^ 
The committee is also directed by the standuig orders, to require 
evidence, that an action for damages has been brought against the 
person supposed to be guilty of adultery, and judgment for the 
plaintiff had thereupon ; or sufficient cause to be shown, why such 
action has not been brought, or such judgment not obtained. 

2524. Where petitioners have been required to be in attendance 
in the house of lords, whilst the biU was pending there, to be exam- 
ined as to coRusion, if the house thinks proper, the committee of 
the commons is, in aU cases, to require their attendance before it, 
for the same purpose. The committee is required to report the bill 
to the house, w^hether it shall or shall not have agreed to the pre- 
amble, or gone through the several clauses, or any of them. 

2525. In the progress of private bills fr-om the lords through the 
commons, they are subject to the same rules, and pass through the 
same stages, and with the same intervals and notices, as those 
w^hich have been already detailed in reference to private bills 
origmatmg in the commons ; but if received at the close of a ses- 
sion, more indulgence is usually shown in dispensing with the 
orders of the house, and in permitting them to pass with less 
delay.^ 

1 Pari. Eeg. (2), XVin. 27, 30, 33. ^ May, 579. 



Chap. VIL] private bills after royal assent. 973 



CHAPTER SEVENTH. 

OF PRIVATE BILLS AFTER RECEIVING THE ROYAL ASSENT; AND 
OF FEES AND COSTS. 

2526. All private bills, during their progress in the commons, 
are known only by the general denomination of private bills ; but 
in the lords the term " private " is applied technically to estate bills 
only, all other bills being distinguished as " local " or " personal," 
although no such distinction is expressed in the standing orders. 
After receiving the royal assent, private bills are divided into three 
classes : 1. Local and personal, declared public ; 2. Private, printed 
by the queen's printers ; and 3. Private, not printed. 

2527. (1.) Every local and personal act passed previous to the 
year 1850, contained a clause, declaring that it " shall be a public 
act, and shall be judicially taken notice of as such," and receives 
the royal assent as a public act. This practice commenced in the 
reign of William and Mary, and was soon extended to nearly all 
private acts by which felonies were created, penalties inflicted, or 
tolls imposed.^ 

2528. (2.) From 1798 to 1815, the private acts, not declared pub- 
lic, were not printed by the queen's printers, and could only be 
given in evidence by obtaining authenticated copies from the statute 
rolls in the parliament office ; but since 1815, the greater part of the 
printed acts have been printed by the queen's printers, and contain 
a clause declaring that a copy so printed " shall be admitted as evi- 
dence thereof by all judges, justices, and others." 

2529. (3.) The last class of acts consists of those which still re- 
main unprinted. These are name, naturalization, divorce, and 
other strictly personal acts, of which a list is always printed by the 
queen's printers, after the titles of the other private acts. 

2530. The main distinction in law between these classes of acts 



1 But by Lonl Brougham's act of 1850, for and personal acts. Such acts were printed 

shortening the language of acts of parliament, with the other statutes of the year, and were 

it is enacted, that every act " shall be deemed not distinguishable from public acts, except 

and taken to be a public act, and shall be by the character of their enactments; but 

judicially taken notice of as such, unless the since 1798, they have been printed in a sepa- 

contn.ry be expressly provided and declared rate collection, and are known as local and 

by such act ; " and the public clause will personal acts. May, 580. 
consequently be omitted from all future local 

82 



974 LEGISLATIVE ASSEMBLIES. [PaRT YIII 

is, that a local and personal act, which is declared to be a public 
act, may be used for all purposes, as a public general statute. It 
may be given in evidence upon the general issue, and must be 
judicially noticed, without being formally set forth. Nor is it 
necessary to show that it was printed by the queen's printers, as 
the words of the public clause do not require it, and the printed 
copy of a public act is supposed to be used merely for the purpose 
of refreshing the miemory of the judge, who has already been made 
acquainted with its enactments. A private act, on the contrary, 
whether printed or not, must be specially pleaded, and given in e^d- 
dence like any other record ; but the copy printed by the queen's 
printers, in the one case, is received as an examined copy of the 
record ; while, in the other, an authenticated copy must be pro- 
duced from the statute rolls in the parliament ofhce.^ Since Lord 
Brougham's act, however, this distinction between public and pri- 
vate acts is done away with, as every public act is required to be 
judicially noticed, unless the contrary is expressly declared. And 
by the 8 and 9 Vict. c. 113, § 3, it is enacted, that all copies of 
private and local and personal acts, not pubhc, if purporting to 
be printed by the queen's printers, shall be admitted in evidence 
thereof by all courts, judges, justices, and others, without any proof 
being given that such copies were so printed.^ 

2531. Fees are chargeable in both houses, upon the various 
stages of private biUs, and are payable by the several parties pro- 
moting or opposing such bills ; the parliamentary agents employed 
by the parties being responsible for the same to officers of the house, 
whose special duty it is to take care, that such fees are properly 
paid ; and if a parliamentary agent neglects his duty in this respect, 
and is reported as a defaulter, the speaker gives orders that his 
functions as agent shall be suspended, until further directions have 
been given by the house.^ 

2532. The last matter to be mentioned in connection with the 
passing of private bills, is the taxation of the costs incmTed by the 
promoters, opponents and other parties, and payable by them to 
their parliamentary agents. By acts recently passed, in both houses, 
a regular system has been established, for ascertaining the reason- 
able and proper costs arising out of every apphcation to parlia- 
ment ; a taxing officer has been appointed in each house for the 
purpose ; and hsts have been prepared, defining the charges which 

1 PMUipps & Amos, U. 611; May, 581. » May, 582, 583. 

» May, 582. 



Chap. VIL] private bills after royal assent. 975 

parliamentary agents and solicitors will be allowed for the various 
services usually rendered by them.^ 

2533. Any person upon whom a demand is made by a parlia- 
mentary agent or solicitor, for any costs incurred in respect of any 
proceedings in the house, or in complying with its standing orders, 
may apply to the taxing officer for the taxation of such costs ; and 
any parliamentary agent or solicitor, who may be aggrieved by the 
non-payment of his costs, may apply, in the same manner, to have 
his costs taxed, preparatory to the enforcement of his claims. The 
taxing officer of either house is thus enabled to tax the whole of 
a bill brought before him for taxation, whether the costs relate to 
the proceedings of that house only, or to the proceedings of both 
houses ; and also other general costs incm-red in reference to a 
private bill or petition. 

2534. In the commons the taxing officer reports his taxation to 
the speaker, and in the lords to the clerk of the parliaments. If no 
objection is made within twenty-one days, either party may obtain 
from the speaker or clerk, as the case may be, a certificate of the 
costs allowed, which, in any action brought for the recovery of the 
amount so certified, wiU have the effect of a warrant of attorney to 
confess judgment, unless the defendant shall have pleaded that he 
is not liable to the payment of the costs.^ 

» May, 583, 584. » May, 584, 685. 



LAW AND PRACTICE 



LEGISLATIVE ASSEMBLIES. 



PART XmiH. 

BIPEACHMENT. 

82* cdrr) 



LAW AND PRACTICE 



LEGISLATIVE ASSEMBLIES. 



PAET NIXTH. 

IMPEACHMENT. 



2535. It has already been stated, that parliament exercises a 
judicial power, for the trial and punishment of offenders, in certain 
cases, by means of bills of attainder and of pains and penalties. 
In proceedings of this description each house participates as a legis- 
lative body, and the concurrence of both is necessary. The person, 
against whom the bill is directed, is tried, so far as any trial takes 
place, first by the one house and then by the other, and if the bill 
passes, is found guilty by both. There is also another form of 
proceeding, in which one house, the commons, appears solely in the 
character of complainants or accusers, and the other, the lords, per- 
forms the functions of a judicial tribunal. A prosecution of this 
character is known by the name of impeachment. I 

2536. The earliest instance of an impeachment by the commons, 
at the bar of the lords, was in the year 1376, in the reign of Edward 
III. Before this time, the practice had been for the lords to try 
persons, whether peers or commoners, without any previous com- 
plaint or interference on the part of the commons, for great public 
offences. At this period, the only participation of the commons, in 
the making of. laws, was in the form of a petition to the king and 
lords, praying that the law desired might be enacted. When they 

(979) 



980 LEGISLATIVE ASSEMBLIES. [PaET IX. 

extended their inquiries into the official conduct of great public 
officers, they proceeded in the same manner, and petitioned the king 
and lords that they might be brought to trial for their offences. 
This "\vas the introduction of the proceeding by impeachment, 
which, by the practice of succeeding times, has become established 
as a constitutional mode of bringing great offenders to justice, and 
has attained a distinct and well-settled form.^ 

2537. Dm-ing the four reigns, which succeeded that of Edward 
III., impeachments were fi-equent ; but in the reigns of Edward IV., 
Henry VII., Hemy VIII., Edward VL, Mary, and Elizabeth, no 
instances of it occurred. JNIr. HaUam remarks, that during this 
latter period, " the institution had fallen into disuse, partly from the 
loss of that control which the commons had obtamed under Richard 
IL, and the Lancastiian kings, and partly from the preference the 
Tudor princes had given to bills of attainder or of pains and penal- 
ties, when they wished to turn the arm of parliament against an 
obnoxious subject." - Perhaps, also, the prosecutions in the star- 
chamber, which were resorted to by the sovereign, during these 
reigns, for the punishment of state offenders, may, to some extent, 
have supplied the place of impeachments.'^ 

2538. In the reign of James I. the practice of unpeachment was 
revived, and used with great energy by the commons, both as an 
instrument of popular power, and for the furtherance of public jus- 
tice. Between the year 1620, when Sir Giles JNIonpesson and the 
lord chancellor Bacon were impeached, and the revolution of 1688, 
there were about forty cases of impeachment. In the reigns of 
"William III., Anne, and George I., there were fifteen ; and in the 
reign of George IL, only one, that of Lord Lovat, for high treason, 
in the year 1746. The last cases were those of Warren Hastings, 
in 1788, and of lord INIelviUe, in 1805.^ 

2539. The purpose of impeachment, in modern times, is the 
prosecution and punishment of high crimes and misdemeanors, 
chiefly of an official or political character, which are either beyond 
the reach of the law, or which no other authority in the State, but 
the supreme legislative power, is competent to prosecute ; and, by 
the law^ of parliament, aU persons, whether peers or commoners, 
may be impeached for any crimes or offences whatever. =■ 

2540. This extraordinary judicature seems to have been called 
into action most frequently, and then to have been most needed, in 

1 May, 49, 50. * May, 49, 50. 

2 Cons. Hist. 357. ^ May, 474. 
« May, 49. 



Part IX.] impeachment. 981 

times when the people had reason to be jealous of the crown ; when 
parliament had less control over prerogative ; when judges held 
their offices at the pleasure of the crown, and courts of justice 
were less pure ; and when, instead of vindicating the law, its exe- 
cution was resisted, and political offenders were screened from 
justice, by the crown and its officers. But, at the present day, 
since the limitations upon the prerogative, the immediate respon- 
sibility of the ministers of the crown to parliament, the vigilance 
and activity of parliament in scrutinizing the actions of public 
men, the settled administration of the law, and the direct influ- 
ence of parliament over courts of justice, and che independence of 
the latter of the crown, the offences properly punishable by im- 
peachment have been of rare occurrence. 

2541. In this proceeding, the commons are said to act as the 
grand inquest of the whole kingdom, in investigating the subject of 
a supposed offence, and in agreeing upon and drawing up the 
articles of impeachment. While engaged in this preliminary step, 
the commons proceed in the same manner, and upon the same evi- 
dence, as in relation to ordinary matters of legislation. According 
to the visual practice, a member, in his place, first charges the ac- 
cused with high treason, or some other high crime or misdemeanor, 
and after supporting his charge with proofs, moves that the' person 
thus implicated, be impeached. If the house deems the grounds of 
accusation sufficient, and agrees to the motion, the member, by 
whom it was made, is ordered to go to the lords, " and at their bar, 
in the name of the house of commons, and of all the commons of 
the United Kingdom, to impeach the accused ; and to acquaint 
them, that this house will, in due time, exhibit particular articles 
against him, and make good the same." The member, thereupon, 
•iccompanied by as many others as are necessary to go with a mes- 
sage, proceeds to the bar of the house of lords, and impeaches the 
accused accordingly.^ 

2542. The articles of impeachment have usually been prepared 
after the formal impeachment above described ; though, in the case 
of Warren Hastings, it was otherwise. A committee is appointed 
to draw up the articles, who proceed accordingly, and, on their re- 
port, the articles are considered. When agreed to, they are 
engrossed and delivered to the lords, with a saving clause, provid- 
ing that the commons shaU be at liberty, if they think proper, to 
exhibit further articles from time to time. 

1 Miiy, 476 



982 LEGISLATIVE ASSEMBLIES. [PaRT IX. 

2543. Upon the formal impeachment, at the bar of the lords, if 
the accused is a peer, he is attached or restrained m custody, by order 
of the house of lords ; if a commoner, he is taken into custody by 
the sergeant-at-arms attending the commons, by whom he is deliv- 
ered to the gentleman usher of the black rod, in whose custody he 
remains, unless he is admitted to bail by the house of lords, or 
otherwise disposed of by its order.^ 

2544. Copies of the articles of impeachment are furnished by 
the house of lords to the party accused, who answers each of them 
in writing, and copies of all such answers are communicated by 
the lords to the commons, who return replications to the same, if 
necessary. 

2545. The lords appoint a day for the trial, and, in the mean 
time, the commons appoint managers to prepare evidence and con- 
duct the proceedings. The witnesses necessary to prove the 
charges, are summoned by the lords, at the request of the com- 
mons. The accused may have summonses issued for the attend- 
ance of witnesses on his behalf, in the same manner. He is also 
entitled to be fully heard in defence by counsel. 

2546. When the house of lords is sitting as a court of impeach- 
ment, for the trial of a peer impeached of high ti-eason, one of 
them is appointed by the crown, on the address of the house, to 
preside during the trial, as lord high steward. On other occasions, 
the chancellor, or speaker for the time being, presides. 

2547. The trial of an impeachment has usually taken place in 
Westminster HaU, which has been temporarily fitted up for the 
purpose. When this is the case, the lords proceed each day, in a 
body, from their own house to the place of trial, where they remain 
whilst the trial is proceeding. Wlien the sitting for the day is 
brought to a close, they retm-n in the same manner. If, during the 
progress of the trial, any question arises, which it is necessary to 
consider and decide, the lords withdraw for that pm-pose to their 
usual place of sitting, and there consider and debate the matter in 
question, in the same manner as any other subject. When it has 
come to a decision, it returns to the place of trial, and makes the 
decision known by its presiding officer. 

2548. The house of commons prosecutes an impeachment by the 
agency of managers previously appointed for the purpose from 
among their own members. The managers exercise the ordinary 
functions of counsel, and open the case, and examine fatnesses to 
sustain the charges, in the same manner as on the trial of an in- 

1 May, 477. 



Part IX.] impeachment. 983 

dictment, "When the case has been concluded, on the part of the 
prosecution, the managers for the commons are answered by the 
counsel for the accused, who also call and examine witnesses for 
the defence, if they think proper, according to the usual course of 
criminal proceedings. "When the case for the defence is closed, the 
managers have the right to reply. The house of commons proceeds 
to the place of trial, and there attends, in a body, each day, during 
the trial, as a committee of the whole, and returns to its house 
in the same manner. In the performance of their several duties, 
both the managers for the commons, and the counsel for the ac- 
cused, are subject to the direction and supervision of the court, and 
are bound to conform to the rules of proceeding which are observed 
in other judicial tribunals. The managers for the commons are 
bound to confine themselves to the charges contained in the articles 
of impeachment.^^^ 

2549. When the cause is concluded on both sides, the lords 
withdraw to their own house, and there agree upon the questions 
to be put, in order to determine whether the accused is guilty or 
not guilty. "When the questions are agreed upon, which may not 
be the case under some days, the lords proceed again to the place 
of trial, and there in the presence of the accused and of the house 
of commons, each member of the court, beginning with the lowest 
in rank, is interrogated, in the manner agreed upon, by the lord 
high steward. The peers successively rise in their places, as the 
questions are put, and, standing uncovered and laying their right 
hands upon their breasts, answer " guilty " or " not guilty," as the 
case may be, " upon my honor." The lord high steward, or other 
presiding officer, if a peer, then gives his own opinion, and proceeds 
to ascertain the result. The numbers, being cast up and ascer- 
tained, are stated by the presiding officer to the lords, and then the 
accused is acquainted with the result. The lords then withdraw to 
their house, and agree to a resolution accordingly, which is entered 
on their journals. If the accused is found guilty, they also agree 
upon the judgment to be rendered against him. 

2550. If the accused is declared not guilty, the impeachment is 
dismissed ; but, if guUty, it then remains for the commons to 
lemand judgment against him, if they think proper. But as the 
commons commence a prosecution by impeachment, at their own 

^ On the trial of Mr. Hastings, he com- house resolved that certain words (those ob- 

plained, by petition, to the house of commons, jected to by Mr. Hastings) ought not to have 

that matters of accusation had been added to been spoken by Mr. Burke, ono of the man- 

those originally laid to his charge, and the agers. Comm. Jour. XLIV. 298 320. 



984 LEGISLATIVE ASSEMBLIES. [PaET IX. 

wtII and pleasure, so they may proceed with it or not, or suspend 
their proceedings, at any stage, as they please. It is in their power, 
therefore, after a conviction, to refrain from demanding judgment 
against the accused, and thus, in effect, to extend a pardon to him. 
Without such demand, the lords cannot proceed to pronounce judg- 
ment. 

2551. When the lords have agreed upon the judgment to be ren- 
dered, they send a message to the commons to acquaint them, that 
the lords are ready to proceed further vdth the impeachment, and 
to render judgment against the accused, if the commons shall see 
fit to demand the same. The commons thereupon attend, with 
their managers, in the place of trial, as before, at the time appointed 
by the lords for the purpose ; and the accused, being called to the 
bar, is then permitted to offer reasons, if he has any, in arrest of 
judgment. When aU such matters have been heard and overruled, 
or when nothing is urged in arrest of judgment, the speaker of the 
commons demands judgment, in their names, and in the names of 
all the commons of England, against the accused ; and the judg- 
ment is thereupon pronounced b}^ the lord high steward, the lord 
chancellor, or the speaker of the lords, as the case may be. The 
proper measures are then taken by the lords to enforce the sentence. 
K the offender is sentenced to the payment of a fine, he is ordered 
to be committed to the tower until payment. 

2552. Wlien an impeachment is once pending in the house of 
lords, it is not discontinued by a prorogation, or even by a dissolu- 
tion of parliament, but contmue?, from session to session, until the 
proceedings are terminated. Each succeeding house of commons 
may, therefore, take up and proceed with an impeachment, which 
has been commenced or prosecuted by then predecessors. But 
this is not the case with the preliminary steps in the house of com- 
mons, which precede an impeachment, which, like all other unfin- 
ished business, are discontinued by a prorogation or dissolution, 
and therefore require to be revived in a succeeding session. To 
prevent the inconvenience which would have resulted from such a 
discontinuance in the cases of Warren Hastings in 1786, and in 
that of Lord Melville, in 1805, acts were passed to pro^dde that the 
proceedings depending in the house of commons upon the articles 
of charge in those cases should not be discontinued by any proro- 
gation or dissolution of parliament. 

2553. The royal prerogative of pardon extends to aU convictions 
on impeachment, as well as indictment; and, therefore, after the 
judgment of the lords has been pronounced, the crown may re- 



Part IX.] impeachment. 985 

prieve or pardon the offender. But attempts having been made by 
the crown, to screen offenders from the inquiry and justice of par- 
liament, by the intervention of the prerogative of pardon, the com- 
mons, in the case of the earl of Danby, in 1679, protested against a 
royal pardon being pleaded in bar of an impeachment, and by the 
act of settlement, 12 and 13 W. III. c. 2, it was declared, " that no 
pardon under the great seal of England shall be pleadable to an 
impeachment by the commons in parliament." 

2554. In this country, whatever may be thought of the question, 
whether the proceeding, by way of impeachment, is a necessary 
incident to a legislative body or not, it is a question, v^hich we 
have no occasion to decide ; inasmuch, as this proceeding is a mat- 
ter here of constitutional provision ; being mentioned and estab- 
lished by the constitutions of the United States, and of aU the 
States in the Union. The provisions on this subject in the consti- 
tution of the United States prevail most extensively, with some 
differences of minor importance, in the several States, and will be 
taken as the basis of the remarks which follow touching impeach- 
ments in this country. The subject will be concluded by a short 
statement of the practice in proceedings of this sort.^ 

2555. I. The subjects of this proceeding are, in general, declared 
to be the chief executive magistrate, and other civil ofRcers. Who 
are civil officers, .liable to this process, can only be authoritatively 
settled by their being enumerated, but wliich has not been done, by 
the constitution of the United States ; under which it has only 
been decided by the senate, sitting as a court of impeachment, that 
members of the legislature are not such civil officers.^ 

2556. II. The power of impeachment is expressly conferred by 
all our constitutions upon the lower or more popular of the two 
branches of which the legislative body is composed, and which, 
from this function, is sometimes denominated the grand inquest of 
the State ; to be exercised, not like a grand-jmy, but in its ordinary 
legislative form of proceeding ; and to be determined upon, unless 
otherwise specified, which is the case in some of the constitutions, 
by the ordinary major vote. This power, in the constitutions of 
the United States, and of the greater number of the individual 

1 In the congress of the United States, from in the thii-d volume of the journnls of the 

the practice of which this summary is taken, senate. Besides these, there have been cases 

four trials of impeachment have occurred, of impeachment in individual States, as, for 

namely, those of WiUiam Blount in 1799 ; of example, that of James Prescott, in Massa- 

John Pickering in 1803 ; of Samuel Chase in chusetts. 

1805; and of James H. Peck in 1832. The ^ J. of S. III. 490. 
thi'ec first -named cases are published together 

83 



986 LEGISLATIVE ASSEMBLIES. [PAET IX. 

States, is conferred directly, and in the most appropriate phraseol- 
ogy, upon the house of representatives ; in others, notice is required 
to be previously given, and an opportunity to be heard in his 
defence, allowed to the party accused ; in others a greater than the 
ordinary majority is required to sustain articles of impeachment ; 
and in others it is provided, that the impeachment of an offender 
shaU operate, until a decision of it in his favor, to suspend him from 
the exercise of the functions of his office. 

2557. III. The charges of impeachment, thus agreed upon, are 
to be preferred by the lower house, to the upper or senate, as this 
branch is caUed; upon which is conferred, in express terms, the 
power to try aU impeachments thus preferred. For this purpose, 
the members of the upper branch, who may take their seats therein, 
and be qualified as such at any stage of the proceedings on an im- 
peachment, are generally required to be under an oath or affirma- 
tion similar to that taken by jurors on the trial of an indictment, 
ivell and truly to try the charge or charges, embraced in the articles ; 
and it is no objection to a member's sitting or acting in this capacity, 
that he has already participated, as a member of the lower house, 
in agreeing to them.^ In some of the constitutions it is provided, 
that when the chief executive magistrate shall be tried, the court 
of impeachment shaU be presided over by the chief or other presid- 
ing justice of the supreme court ; in that of Vermont it is provided 
that the senate sitting as a court of impeachment, shall take to its 
assistance, for their opinion merely, the justices of the supreme 
com-t ; and in other constitutions it is provided generally, that there 
shall be no trial of an impeachment until after an adjournment of 
the legislature. 

2558. IV. The principle of unanimity, which distinguishes trial 
by jury, does not prevail in the trial of impeachment ; the votes of a 
majority only of the members constituting the court, unless other- 
^^dse specified in the particular constitution, being necessary to a 
conviction. In the constitution of the United States, and in those 
of the greater number of the States, it is expressly provided, that 
the concurrence of two thirds, at least, of the members present, 
shall be necessary to convict. 

2559. V. The sentence, in cases of impeachment, commonly ex- 
tends only to removal from office, and disqualification to hold and 
enjoy any office of honor, trust, or profit, under the particular state 
or government in which the proceeding is instituted ; and either or 

1 Hatsell, IV. lr7, and note 181; J. of S. III. 333, 369. 



Part IX.] impeachment. 987 

both of these may be inflicted in any given case.^ A conviction on 
impeachment is usually exempted from the operation of the ordi- 
nary pardoning power. 

2560. VI. It is generally provided, in the American constitu- 
tions, that the party convicted on an impeachment shall, neverthe- 
less, " be liable and subject to indictment, trial, judgment, and 
punishment, according to law," as in other cases. 

2561. VII. An impeachment is not discontinued or dissolved by 
an adjournment or dissolution of the legislature in which it is pend- 
ing ; but may be brought forward, in the state in which it was left, 
and prosecuted in a succeeding legislature. 

2562. VIII. The tribunal before which an impeachment is pre- 
ferred, may take such order as it thinks proper according to law, for 
the appearance of the party accused, and may proceed to trial in 
his absence.^ 

2563. The following is a summary of the practice in this respect 
of the two houses of the congress of the United States. When 
an officer is known or suspected to be guilty of malversation in 
oflBce, some member of the house of representatives usually brings 
forward a resolution to accuse the party, or for the appointment of 
a committee to consider and report upon the charges brought 
against him. The latter is the usual course ; and the report of the 
committee ordinarily embraces, if adverse to the party, a statement 
of the charges, and recommends the resolution that he be im- 
peached therefor. If the resolution is adopted by the house, a 
committee is thereupon appointed to impeach the party at the bar 
of the senate ; to state that the articles against him will be exhib- 
ited in due time, and made good before the senate ; and to demand 
that the senate take order for the appearance of the party to answer 
to the impeachment. 

2564. This being accordingly done, the senate signifies its wil- 
lingness to take such order ; and articles are then prepared by a 
committee, under the direction of the house of representatives ; 
which, when reported to, and approved by the house, are then pre- 
sented in the Hke manner to the senate ; and a committee of man- 
agers is appointed to conduct the impeachment. When the articles 
are thus presented, the senate issues a process summoning the per- 
son accused to appear before it, to answer the articles. The pro- 
cess is served by the sergeant-at-arms of the senate, and due return 
is made thereof under oath. 

1 J. of S. m. 376. 2 J. of S. m. 505, 506. 



988 LEGISLATIVE ASSEMBLIES. [PaRT IX. 

2565. The articles thus exhibited need not, and do' not in fact, 
pursue the strict form and accuracy of an indictment. They are 
sometimes quite general in the form of the allegations ; but always 
contain, or ought to contain, so much certainty as to enable the 
party to put himself upon the proper defence, and also in case of 
acquittal to avail himself of it, as a bar to another impeachment. 
Additional articles may be exhibited, especially, as is commonly the 
case, if the right to do so has been reserved, at any stage of the 
prosecution. 

2566. When the return day of the process for appearance has 
arrived, the senate resolves itself into a court of impeachment, and 
the senators are then, if not before, solemnly SAvorn or affirmed to 
do impartial justice upon the impeachment, according to the con- 
stitution and laws of the United States. . The person impeached is 
then called to appear and answer the articles. If he does not ap- 
pear in person, or by attorney, his default is recorded, and the sen- 
ate may proceed, ex parte, to the trial of the impeachment. If the 
party does appear in person, or by attorney, his appearance is re- 
corded. Counsel are permitted to appear, and to be heard upon 
an impeachment. 

2567. When the party appears, he is entitled to be furnished 
with a copy of the articles, and time is allowed him to prepare his 
answer thereto. The answer, like the articles, is exempted from 
the necessity of observing great strictness of form. The party may 
plead that he is not guilty as to part, and make a further defence as 
to the residue ; or he may in a few words, saving all exceptions, 
deny the whole charge or charges ; or he may plead specially in 
justification or excuse all the circumstances attendant upon the 
case. And he is also indulged with the liberty of offering argu- 
mentative reasons, as weU as facts, against the charges, in support, 
and as part, of his answer, to repel them. It is usual to give a fall 
and particular answer separately to each article of the accusation. 

2568. When the answer is prepared and given in, the next regu- 
lar proceeding is, for the house of representatives to file a replica- 
tion to the answer in writing, in substance denying the truth and 
validity of the defence stated in the answer, and averring the truth 
and sufficiency of the charges, and the readiness of the house to 
prove them, at such convenient time and place as shaU be appoint- 
ed by the senate. A time is then assigned for the trial, and the 
senate at that time, or before, adjusts the preliminaries and other 
proceedings proper to be had, before and at the trial, by fixed regu- 
lations; which are made known to the house of representatives, 



Part IX.] impeachment. 989 

and to the party accused. On the day appointed for the trial, the 
house of representatives appears at the bar of the senate, either in 
a body, or by managers selected for that purpose, to proceed with 
the trial. Process to compel the attendance of witnesses is pre- 
viously issued, at the request of either party, by order of the senate, 
and at the time and place appointed, such witnesses are bound to 
appear and give testimony. 

2569. On the day of trial, the parties being ready, the manager^" 
to conduct the prosecution open it on behalf of the house of rep- 
resentatives, one or more of them delivering an explanatory speech, 
either of the whole charges, or of one or more of them. The pro- 
ceedings are then conducted substantially as they are upon com- 
mon judicial trials, as to the admission or rejection of testimony, 
the examination and cross-examination of witnesses, the rules of 
evidence, and the legal doctrines as to crimes and misdemeanors. 
When the whole evidence has been gone through, and the parties 
upon each side have been fully heard, the senate then proceeds to 
the consideration of the case. If any debates arise, they are ordi- 
narily conducted in secret ; if none arise, or after they are ended, a 
day is assigned for a final public decision by yeas and nays upon 
each separate charge in the articles of impeachment. 

2570. When the court is assembled for the purpose of giving 
judgment, the question is propounded to each member of the sen- 
ate by name, by the presiding officer of the court, in the following 
manner, upon each article, the same being first read by the sec- 
retary of the senate : " Mr. , how say you ; is the respon- 
dent guilty, or not guilty, of a high crime and misdemeanor, as 

charge(l in the article of impeachment ? " Whereupon the 

member rises in his place, and answers guUty or not guilty, as 
his opinion is. If upon no one article two thirds of the senate 
decide that the party is guilty, he is then entitled to an acquittal, 
and is declared accordingly to be acquitted. If he is convicted of 
all, or any of the articles, the senate then proceeds to fix and 
declare the proper punishment. The pardoning power of the presi- 
dent does not extend to judgments upon impeachment ; and hence, 
when once pronounced, they become absolute and irreversible.^ 

1 Story, Commentaries on the Constitution, II. §§ 805, 806, 807, 808, 809. 

83* 



990 LEGISLATIVE ASSEMBLIES. 



In concluding the foregoing work on parliamentary law and 
practice, the author may be allowed to suggest that, the great 

PUEPOSE OF ALL THE RULES AKD FORMS, BY WHICH THE BUSINESS OP 
A LEGISLATIVE ASSEMBLY IS CONDUCTED, WHETHER CONSTITUTIONAL, 
LEGAL, OR PARLIAMENTARY, IN THEIR ORIGIN, IS TO SUBSERVE THE 
WILL OF THE ASSEMBLY, RATHER THAN TO RESTRAIN IT ; TO FACILI- 
TATE, AND NOT TO OBSTRUCT, THE EXPRESSION OF ITS DELIBERATE 
SENSE. 



-HC 



APPENDIX. 



APPENDIX. 



OF THE CONTINUITY AND PERMANENCE OF THE SENATE OP THE UNITED 

STATES. 

Mr. Buchanan rose and said : — 

An old senate and a new senate ! There could be no new sen- 
ate. This was the very same body, constitutionally, and in point 
of law, which had assembled on the first day of its meeting, in 
1789. It had existed, without any intermission, from that day until 
the present moment, and would continue to exist so long as the 
government should endure. It was, emphatically, a permanent body. 
Its rules were permanent, and were not adopted from congress 
to congress, like those of the house of representatives. For many 
years after the commencement of the government, its secretary was 
a. permanent officer, though our rules now require that he should be 
elected at stated intervals. The senate always had a president, 
and there were always two thirds of its actual members in exist- 
ence, and generally a much greater number. It would be useless 
to labor this question. Every writer, without exception, who had 
treated on the subject, had declared the senate to be a permanent 
body. It never dies ; and it was the sheet-anchor of the consti- 
tution, on account of its permanency.^ 



XL 

WRIT FOR THE ELECTION OF THE MEMBERS OF THE HOUSE OF 

COMMONS. 

The Writ to the Sheriff, on a General Election. 

George the Third, by the grace of God, of the United Kingdom 
of Great Britain and Ireland, King, Defender of the Faith, and so 
forth. — To the Sheriff of the county of Oxford, greeting. Whereas 
by the advice and assent of our council, for certain arduous and 

» Cong. Globe, IX. 240. 

(993) 



994 APPENDIX. 

urgent affairs concerning ns, the state and defence of onr king- 
dom of Great Britain and the church, we have ordered a certain 
parliament to be holden at our city of Westminster, on the twenty- 
ninth day of November next ensuing, and there to treat and have 
conference with the prelates, great men, and peers of our realm, 
We command and strictly enjoin you, that proclamation being 
made of the day and place aforesaid, in your next county court 
to be holden after the receipt of this our writ, two knights of the 
most fit and discreet of the said county, gut with swords, and of 
the university ^ of Oxford two bui'gesses, and of every city of that 
county two citizens, and of every borough in the same county two' 
burgesses of the most efficient and discreet, freely and indifferently 
by tJiose who at such proclamation shall be present according to the 
form of the statues in that case made and provided, you cause to be 
elected; and the names of those knig-hts, citizens, and burgesses, so 
to be elected (whether they be present or absent) you cause to 
be inserted in certain indentures to be thereupon made betw^een 
you and those who shall be present at such election, and then at the 
day and place aforesaid you cause to come in such manner that 
the said knights, for themselves and the commonalty of the same 
county, and the said citizens and burgesses for themselves and the 
commonalty of the said universities, cities, and boroughs respectively, 
may have from them fuU and sufficient power to do and consent to 
those things which then and there by the common council of our 
said kingdom, (by the blessing of God^) shall happen to be ordained 
upon the aforesaid affairs, so that for want of such power, or 
through an improvident election of the knights, citizens, or bur- 
gesses, the aforesaid affairs may in nowise remain unfinished ; 
willing, nevertheless, that neither you nor any other sheriff of this out 
said kingdom be in anywise elected ; ^ and that the election in your 
full county so made- distinctly and openly, under your seal and the 
seals of those who shall be present at such election, you do certify 
to us in our chancery, at the day and place aforesaid without 
delay, remitting to us one part of the aforesaid indentures annexed 
to these presents, together with this "^a*it. Witness oiuself at 
Westminster, the first day of October, in the fourteenth year of our 
reign. 

To be indorsed when returned. 

The execution of this writ appears in certain schedules hereunto 
annexed. 

A. B. Sheriff. 

[By the statute VII. H. 4, c. 15, in the writs of the Parliament 
to be made hereafter, this clause shall be put, " Et electionen tuan 

1 The writs to the shei-iff ai-e all in the same universities. Dougl. Hist. Controv. Elect. 450. 

foi-m, except that in this and in that to the This also con-esponds with the Latin form. 1 

sheriff of Cwmbridgesliire there is a clause for Eliz. set forth in D'Ewes, 37. 

the election of members for the respective '^ See Doug. Hist. Controv. Elect. 450. 



APPENDIX. 995 

in plene comitata tuo factam distincti, et apertd sub sigillo tuo, et 
sigillis eorum que election! illi inter fuerint nobis in cancellaria 
nostra ad diem et locum in brevi contentos certifias in dilate."] 



IIL 

ON THE LIABILITY OF RETUENING OFFICEES. 

The great constitutional principle, stated in the text was first 
established in England, at the commencement of 1he last century, 
in the case of Ashby v. White, reported in 2 Lord Raymond, 938 ; 
6 Modern Rep. 45 ; and Brown's Parliament Cases, 49 ; and was 
afterwards recognized and confirmed in Harman v. Tappenden, 
1 East, 555, in Drewry v. Coulton, 1 East, 563, (note,) and in other 
cases. The case of Ashby v. White is a leading case in English 
jurisprudence, which is generally referred to, not only for the par- 
ticular point decided, but as authority for the great principle, that 
wherever tha common law gives a right, it gives at the same time 
a remedy by action. The case is also interesting on account of the 
important constitutional principle involved in the question Mdiich 
it decides, and the extraordinary proceedings to which it subse- 
quently gave rise between the two houses of parliament, involving 
questions of still greater extent and importance. The case is 
further remarkable, from the fact, that it was at first decided against 
the plaintiff by these judges against the chief justice. Sir John 
Holt, whose opinion was finally sustained, and ihe judgment of his 
brethren reversed, by the house of lords, on a writ of error. This 
case undoubtedly establishes the law in this country, as well as in 
England, and has been recognized as authority, by cases in Massa- 
chusetts, (Kilham v. Ward, 2 Mass. Rep. 236 ; Lincoln v. Hap- 
good, 11 Mass. 350 ; Capen v. Foster, 12 Pickering, Rep. 485) ; by 
cases in New Hampshire, (Wheeler y. Patterson, 1 N. H. Rep. 88) ; 
in Connecticut, (Swift v. Chamberlain, 3 Conn. Rep. 537) ; and by 
cases in New York, (Jenkins and others v. Waldron, 11 John. Rep. 
115) ; and probably by cases in other States. The decisions in the 
first-named State extend the principle of the liability much beyond 
the case of Ashby v. White, and allow the action to be maintained, 
even where there is no ground for imputing any wilful, intentional, 
or corrupt conduct to the officers managing the election ; but in 
this respect, the jurisprudence of Massachusetts has not been fol- 
lowed or sustained by the courts in New Hampshire, or New York. 
In the case of Wheeler v. Patterson, (1 N. H. Rep. 88,) chief 
justice Richardson in giving the opinion of the court, reviews, and 
completely refutes the reasoning of the supreme court of Massa- 
chusetts, in the care of Lincoln v. Hapgood, (11 Mass. Rep. 350,) 
in which it was held, that wilful or corrupt misconduct was not 



996 APPENDIX. 

necessary to support the action. The doctrine of the latter case 
was however reaffirmed in the later case of Capen v. Foster, (12 
Pick. Rep. 485,) in a very able opinion pronounced by the present 
chief justice, not on the gTound apparently of reason or principle, 
but on that of authority merely. Lideed, unless the question is 
considered as no longer an open one, it seems to be entii-ely impos- 
sible to sustain the JNIassachusetts decisions, but upon the anoma- 
lous and extraordinary ground, that a municipal officer, acting in a 
judicial capacity at an election, is responsible in damages for an 
error of judgment; a principle which has never at anytime or in 
any country been applied to other officers of a judicial or quasi 
judicial character. 



IV. 

ORiaiN OF THE MAJORITY PRINCIPLE. 

The charter of the colony of the Massachusetts Bay being that 
of a trading company, and not municipal in its character, th-^. offi- 
cers of the colony were origmally chosen at general meetings of 
the whole body of freemen ; precisely as at the present day, the 
directors of a business corporation, a bank, for example, are chosen 
Dy the stockholders at a general meeting. In the choice of assist- 
ants, "^^ho were to be eighteen in number, at these meetings of the 
company, or, as they were called, com-ts of election, the practice 
seems to have been for the names of the candidates to be regularly 
moved and seconded, and put to the question, one by one, in the 
same manner with aU other motions. This was then, as it is now, 
the mode of proceeding in England, in the election of the speaker 
of the house of commons, and in the appointment of committees 
of the house, when they are not chosen by ballot. Probably, also, 
it was the usual mode of proceeding in electing the officers of a 
private corporation or company. In voting upon the names thus 
proposed, it was ordered, — with a view, doubtless, to secure the 
independence and impartiality of the electors, — that the freemen, 
instead of giving an affirmative or negative voice in the usual 
open and visible manner, should give their suffiages by ballot, and 
for that purpose should " use Indian corn and beans, the Lidian 
corn to manifest election, the beans contrary." The names of the 
candidates being thus moved, and voted upon, each by itself, it fol- 
lowed, of course, that no person could be elected but by an abso- 
lute majority. 

In a very few years, however, from the first settlement of the 
country, the number of the fi-eemen had so much increased, and 
they had so Avidely distributed themselves over the territory of the 
colony, that it had become inconvenient to a great many of them 
to attend the meetings of the company, on account of then* dis- 



APPENDIX. 997 

tance from the place of meeting. In order to obviate this incon- 
venience, a mode of proceeding was, at length, established, which 
enabled those of the freemen who did not wish, or found it im- 
practicable, to attend the meetings, to participate both in the 
nomination, and in the election of the assistants, as they had 
done before. 

Previous to the annual meeting for election held in Boston, 
meetings were held in the several towns, at which the freemen put 
in then- votes in distinct papers, or, as we now call them, ballots, 
for such persons not exceeding twenty in number, being freemen 
and resident, whom they desired to have chosen for magistrates or 
assistants, at the next election. These votes being sent to Boston, 
a convenient time before the election, and there examined by the 
proper authorities, the names of those twenty-six persons who had 
the most votes were ascertained, and they were declared to be "the 
men and they only," to be put to vote at the election. These 
names, together with the number of votes given for each, were 
then communicated to the freemen of the several towns, as the per- 
sons nominated for election as magistrates or assistants. 

The freemen were again called together in their several towns, a 
short time before the holding of the com-t of election, and such of 
them as pleased were allowed to put in their proxies of election, 
for the officers then to be elected, including twenty assistants to be 
chosen by Indian corn out of the twenty-six persons in nomination. 
These proxies were sealed up, with the name of the person voting, 
written on the paper, and transmitted to Boston, on the day of 
election ; when and where all the freemen of the colony, who had 
not voted by proxy, were required to appear, and bring in their 
votes. The votes thus sent by proxy, as well as those brought in 
by the freemen, in person, were all counted together, and the result 
of the election determined accordingly. Those eighteen of the 
twenty-six nominated, who had the most votes, were declared the 
assistants. 

By this mode of proceeding, it will be perceived, that all the 
freemen of the colony were enabled to participate in the nomina- 
tion of the candidates, and those who chose to do so in the elec- 
tion, for assistants, without being obliged to attend the court of 
election, in person ; and that the assistants were elected substan- 
tially in the same manner as before, namely, by a nomination at 
large, and an affirmative or negative put upon each name. The 
principle of the absolute majority, as distinguished from that of the 
plurality, seems thus to have had its origin and become established 
in our municipal elections. 

84 



998 APPEiST)IX. 



V. 



KETURN OF A WEIT OF ELECTIOJN'. 

Indenture of Return for a County. 

This indenture, made in the full county of York, holden at the 
Castle of York, in and for the said comity, on AYednesday 
day of , in the year of the reign of our Sovereign Lord 

George the Thii'd, etc. ; and in the year of our Lord , betvi^een 

A. B. Esq., sheriff of the said county of the one part ; and C. D. E. 
F. etc., and many other persons of the county aforesaid and electors 
of knights to Parliament for the said comity of the other part; 
witnesseth, that proclamation being made by the said sheriff, by 
vu'tue of ^nd according to a vvTrit of our sovereign lord the king 
dh'ected to the said sheriff and hereunto annexed, for the electing 
of two knights, of the most fit and discreet of the said county, gut 
with swords, to serve in a certain ParHament to be holden at the 
city of Westminster, on the day of next ensuing. 

The said parties 1o these presents, together T\dth the major part 
of the electors for the county aforesaid, present, in the full county 
of York at the castle of York aforesaid, on the day of the date 
hereof, by virtue of the said writ, and according to the force and 
effect of the statutes in that case made and pro^dded, have, in the 
said full county of York by and with our assent and consent, freely 
and indifferently elected and chosen two knights the luost fit and 
discreet of the said county girt with swords, to wit, Sir G. S., 
baronet, and H. D. of etc. Esq., to be knights to the said parhament, 
so to be holden at the day and place in that behalf hereinbefore 
mentioned for the commonalty of the comity of York ; giving and 
granting to the aforesaid knights full and sufficient power for them- 
selves and the commonalty of the same county to do and consent 
to those things which, in the said parliament, by the common 
council of the kingdom of our said lord the king, by the blessing of 
God, shall happen to be ordained upon the afFans in the said -unrit 
specified. In Vvdtness whereof, the parties to these presents have 
interchangeably put their hands and seals, the day, year, and place 
first above written. 

A. B., 
C. D., 
E. F., etc 



APPENDIX. 999 

VI. 

speaker's warrant. 

I. Copy of the Warrant issued in Duane^s Case. J. of S. III. 60, 

United States, ) 

The 27th day of March, 1800, \ ^^• 

Whereas the senate of the United States, on the 18th day of 
March, 1800, then being in session in the city of Philadelphia, did 
resolve that a publication in the General Advertiser, or Aurora, a 
newspaper printed in the said city of Philadelphia, on Wednesday, 
the 19th day of February, then last past, contained assertions and 
pretended information respecting the senate, and committee of the 
senate, and their proceedings, which were false, defamatory, scan- 
dalous, and malicious, tending to defame the senate of the United 
States, and to bring thena into contempt and disrepute, and to 
excite against them the hatred of the good people of the United 
States ; and that the said publication was a high breach of the 
privileges of the house. 

And whereas the senate did then further resolve and order, that 
the said William Duane, resident in the said city, and editor of 
said newspaper, should appear at the bar of the house, on Monday, 
the 24th day of March, instant, that he might then have oppor- 
tunity to make any proper defence for his conduct in publishing 
the aforesaid false, defamatory, scandalous, and malicious assertions 
and pretended information. 

And whereas the said William Duane did appear on said day 
at the bar of the house, pursuant to said order, and requested coun- 
sel ; and the senate, by their resolution of the 24th day of March, 
instant, 

Resolved, That William Duane, having appeared at the bar of 
the senate, and requested to be heard by counsel on the charge 
against him for a breach of privileges of 'the senate, he be allowed 
the assistance of counsel while personally attending at the bar of 
the senate, who might be heard in denial of any facts charged 
against said Duane, or in excuse and extenuation of his olience, 
and that the said William Duane should attend at the bar of the 
senate on Wednesday, then next, at twelve o'clock, of which the 
said Duane had due notice. 

And whereas said William Duane, in contempt of the said last- 
mentioned order, did neglect and refuse to appear at the bar of the 
said senate, at the time specified therein ; and the senate of the Uni- 
ted States, on the 27th day of March, instant, did thereupon resolve 
that the said William Duane was guilty of a contempt of said order 
and of the senate, and that for said contempt he, the said William, 
should be taken into custody of the sergeant-at-arms attending the 



1000 appejTOix. 

senate, to be kept for their further orders. All which appears by 
the journals of the senate of the United States, now in session in 
the said city of Philadelphia. 

These are, therefore, to require you, James Mathers, sergeant-at- 
arms for the senate of the United States, forthmth to take into youi 
custody the body of the said WiUiam Duane, now resident in the 
said city of Philadelphia, and him safely to keep, subject to the 
further order of the senate ; and all marshals, and deputy marshals, 
and ci-vdl officers, of the United States, and every other person, are 
hereby required to be aiding and assisting to you in the execution 
thereof; for which this shall be your sufficient waiTant. 

Given under my hand, this 27th day of March, 1800. 

Thomas Jefferson", 
President of the Senate of the United States. 

2. Copy of the Warrant issued by the Speaker of the House of 

Commons in the case of the Sheriff of Middlesex. May, 72. 

Whereas the house of commons have this day resolved that "W. 
Evans, Esq., and J. Whulton, Esq., sheriff of Middlesex, having 
been guilty of a contempt and breach of the privileges of this house, 
be committed to the custody of the sergeant-at-arms attending this 
house ; these are therefore to require you to take into yom- custody 
the bodies of the said W. Evans and J. Whulton, and them safely 
to keep during the pleasure of this house ; for which this shall be 
your sufficient warrant. 

3. Copy of Summons for Witnesses in the House of Representatives 

of the United States. 

By authority of the house of representatives of the congress of 
the United States of America. 

To Sergeant-at-arms. You are hereby commanded to 

summon of , to be and appear before the committee 

of the house of representatives of the United States, 
in their chamber, in the capitol, in the city of Washington, on the 
, at the hour of , then and there to testify touching 

matters of inquiry committed to said committee, and he is not to 
depart without leave of said committee. 

Herein fail not, and make return of this summons. 

Witness my hand, and the seal of the house of 
representatives of the United States, at the city 
of Washington, this day of 

Speaker. 
Attest : 

Clerk. 



APPENDIX. 1003 

VII. 

THE SPEAKER'S PRAYER DURING THE SESSION. 



>'c 



It had been the custom of these later Protestant parliaments for 
the speaker to compose a. prayer, to be read by him every morning 
during the session. Accordingly, the present speaker made and 
read the following : — " O eternal God, Lord of heaven and earth, 
the gi'eat and mighty Counsellor, we thy poor servants, assembled 
before thee, in this honorable senate, humbly acknowledge our great 
and manifold sins and imperfections, and thereby our unworthiness 
to receive any grace and assistance from Thee : yet, most merciful 
Father, since, by thy Providence, we are called from all parts of the 
land to this famous council of parliament, to advise of those things 
which concern thy glory, the good of thy church, the prosperity of our 
prince, and the weal of her people ; we most entirely beseech thee, 
that pardoning all our sins in the blood of thy son Jesus Christ, it 
would please thee, by the brightness of thy Spirit, to expel dark- 
ness and vanity from our minds, and partiality from our speeches ; 
and grant unto us such wisdom and integrity of heart as becometh 
the servants of Jesus Christ, the subjects of a gracious prince, and 
members of this honorable house. Let not us, O Lord, who are 
met together for the public good of the whole land, be more care- 
less and remiss than we use to be in our own private causes. 
Give grace, we beseech thee, that every one of us may labor to 
show a good conscience to thy majesty, a good zeal to thy word, 
and a loyal heart to our prince, and a Christian love to our country 
and commonwealth. O Lord, so unite and conjoin the hearts of 
her excellent majesty and this whole assembly, as they may be a 
threefold cord, not easily broken ; giving strength to such godly 
laws as be aheady enacted, that they may be the better executed, 
and enacting such as are further requisite for the bridling of the 
wicked, and the encouragement unto the godly and well-affected 
subjects : that so thy great blessing may be continued towards us, 
and thy giievous judgments turned from us. And that only for 
Christ Jesus' sake, our most glorious and only mediator and advo- 
cate, to whom with thy blessed majesty and the Holy Ghost, be 
given aU honor and praise, power and dominion, from this time forth 
for ever more." (Hans. P. H. I. 808.) 

84* 



1C02 APPENDIX. 

VIIL 

BILL PASSED BY THE MISCOUXTEvrG OF VOTES. 

Burnett, (History of His Own Times,) vol. H. p. 485, (1680,) re- 
lates the follo\\Tiig anecdote: — "The former parliament had passed 
a very strict act for the due execution of the habeas corpus ; which 
was indeed all they did ; it was carried by an odd artifice in the 
house of lords. Lord Grey and lord Norris were named to be the 
tellers ; lord Nonis, being a man subject to vapors, was not at all 
times attentive to what he was doing ; so a very fat lord coming in, 
lord Grey counted him for ten, as a jest at fiist ; but seeing lord 
Norris had not observed it, he went on with this misreckoning 
after ; so it was reported to the house and declared that they who 
were for the bill were the majority, though it indeed went on the 
other side ; and by this means the bill passed." Speaker Onslow's 
note on this passage is : — " See JVIuiute-Book of the House of 
Lords, with regard to this bill, and compare there the number of 
lords that day in the house with the number reported to be in the 
division, which agrees with this story." The bill, which was the 
subject of this anecdote, passed in the 31 Charles H. of which it is 
chap. 2, and is entitled, " An act for the better securing the liberty 
of the subject, and for preventing of imprisonments beyond seas." 
This statute is the famous habeas corpus act, which, says Black- 
stone, III. 135, is frequently considered as another magna charta. 
Also, IV. 438, " great bulwark of the constitution." Lord Mans- 
field, Pari. E.eg. II. 168, alluding to the anecdote, says : — " Sup- 
pose, again, the tellers,^ through mistake or design, had misreported 
the numbers, would you consent to have the declared sense of the 
house set aside ? I remember to have heard a matter of that sort, 
upon one of the greatest questions ever decided in this house : 
Lord Bradford, being a remarkably fat man, the teller, after the 
question was carried, said, that he counted him as ten, by ^\^hich he 
gained the victory. It is, indeed, more probable, that he might have 
told him as two ; but, in either event, it is plain, the matter was not 
to be set right after the sense of the house was once regularl}- de- 
clared." This last remark is not now true; it is quite common to 
correct mistakes in a count, and, if made necessary by such correc- 
tion, to alter the determination of the house. 



APPENDIX. 1003 



IX. 

TAKING OF THE TEAS AND NAYS. 

Attempts have been recently made, some of which are not want- 
ing in ingenuity, to facilitate the taking of a question in this man- 
ner by mechanical contrivances. One plan proposed to provide 
each member at his seat with tw^o handles, lilve those of a door bell, 
one of which he was to pull for aye, and the other for no. These 
were to communicate with machinery at the clerk's table, by means, 
of which it would be seen how each member voted. The votes 
could then be enumerated and declared. This invention seems to 
have attracted some admiration for its novelty and ingenuity, but 
has not as yet been anywhere adopted. The method of taking 
the yeas and nays, which. has long been practised in Massachusetts, 
probably combines all the advantages which can be derived from 
any kind of mechanical invention. 

In the house of representatives of Massachusetts, which is by 
far the most numerous of all the legislative bodies in this country, 
the mode practised in taking the yeas and nays is the following. 
The names of the members being printed on a sheet, the clerk calls 
them in their order ; and, as each one answers, he places a figure in 
pencil expressing the number of the answer, at the right or left of 
the name, as the answer is yes or no ; so that the last figure on 
each side shows the number of the answers on that side, and the 
two are the numbers on the division ; thus, at the left hand of the 
name of the first member that answers yes, the clerk places a figure 
1 ; at the right hand of the name of the first member that answers 
no, he also places a figure 1 ; the second member that answers yes 
is marked 2 ; and so on to the end ; the side of the name, on which 
the figure is placed, denoting whether the answer is yes or no, and 
the figure denoting the number of the answer on that side. The 
affirmatives and negatives are then read separately, if necessary, 
though it is usually omitted, and the clerk is then ready, by means 
of the last figure on each side, to give the result to the speaker to 
be announced to the house. The answers are afterwards written 
out at length on the lists, : — the names recorded when that is re- 
quired in the journal, — and the lists themselves preserved and 
bound up at the end of the session. By this mode of proceeding, 
which is at the same time the most expeditious and the most cer- 
tain to be correct, much valuable time is saved, which would other- 
wise be wasted in waiting for the result to be ascertained by the 
comparatively slow and uncertain method of counting. 



1004 APPENDIX. 



X. 

FREEDOM OP SPEECH AND DEBATE. 

The doctrines laid down by Chief Justice Parsons, in the case 
of Coffin V. Coffin, (Mass. Rep. IV. 1 to 36,) seem perfectly conso- 
nant wdth the true principles of parKamentary law ; but the appli- 
cation of them to the case itself has always appeared to me very 
extraordinary, and, to say the least, of very doubtful correctness. 
The facts were these : By the constitution of Massachusetts, as it 
then stood, public notaries were chosen, for the several counties, by 
the joint ballot of the two branches of the legislature. At the June 
session, in 1805, one of the members of the house of representa- 
tives, as a preliminary step to the election of notaries, submitted a 
resolution for the appointment of an additional notary for the 
county of Nantucket, stating, at the same time, the facts on which 
he founded his proposition. The defendant, also a member, rose in 
his place, and inquired of the mover, "where he obtained his infor- 
mation of the facts which he had stated to the house. The mover 
answered, that his information came from a respectable gentleman 
from Nantucket. The resolution was then adopted, and the house 
proceeded to other business. The defendant afterwards, and before 
the rising of the house, met the mover of the resolution in one of 
the passage ways within the body of the house, and inquired of 
him who the respectable gentleman was from whom he received 
his information. The mover then pointed out the plaintiff, who 
was sitting without the bar, and said that he -was the gentleman in 
question. The defendant, thereupon, uttered the slanderous words 
upon which the action was brought. The court decided that his 
privilege was no defence to the action. It seems difficult, even 
upon the prmciples advanced by the court, to conceive of a case in 
which a member could be more clearly entitled to immunity than 
this. The defendant spoke the words, not in debate, it is true, but 
within the house, during its sitting, to a brother member, within 
the hearing of members only, and in reference to a subject before 
the house ; for although the resolution had passed, yet notaries 
had not been elected, and the resolution might have been rescinded 
at any time before the election. 



XL 

EXTRACT FROM PRESIDENT POLK'S MESSAGE, DECLINING TO FURNISH 

PAPERS. 

" It may be alleged, that the power of impeachment belongs to 
the house of representatives, and that with a view to the exercise 
of this power, that house have the right to investigate the conduct 



APPENDIX. 1005 

of aU public officers under the government. This is cheerfully ad- 
mitted. In such a case, the safety of the republic would be the 
supreme law ; and the power of the house, in the pursuit of this 
object, would penetrate into the most secret recesses of the execu- 
tive department. It could command the attendance of any and 
every agent of the government, and compel them to produce all 
papers, public or private, official or unofficial, and to testify on oath 
to all facts within their knowledge. But, even in a case of that 
kind, they would adopt all wise precautions to prevent the exposure 
of all such matters, the publication of AA^hich might injuriously 
affect the public interest, except so far as this might be necessary to 
accomplish the great ends of pubhc justice. If the house of repre- 
sentatives, as the grand inquest of the nation, should at any time 
have reason to believe that there has been malversation in office, by 
an improper use or application of the public money by a public 
officer, and should think proper to institute an inquiry into the 
matter, all the archives and papers of the executive department, 
public or private, would be subject to the inspection and control of 
a committee of their body, and every facility in the power of the 
executive be afforded to enable them to prosecute the investiga- 
tion." (J. of H. 29th Cong. 1st Sess. 693.) 



XII. 

DIVISION OF A QUESTION. 

In the year 1770, a question arose in the house of commons, 
whether an individual member had not a right to have a compli- 
cated motion divided into its several parts, and a question put sep- 
arately on each, on his mere demand, and without any motion or 
vote for that purpose. A committee of the whole having reported 
a resolution, containing two propositions, and the question being 
stated on agreeing to the resolution, Sir William Meredith ad- 
dressed the house in opposition to the resolution, and concluded his 
speech with insisting that it contained a comphcated question, and 
that it was the undoubted right of any one member to have it sep- 
arated, before any question could be put upon it. On this question 
a debate took place, in which several members participated, Mr. 
Dyson, who had been clerk of the house, taking the negative, and 
Mr. George Grenville the affirmative ; and the speaker. Sir Fletcher 
Norton, being called on for his opinion, gave it in the negative. 
Sir William Meredith thereupon replied, and concluded his remarks 
by saying, that he should take the sense of the house upon the 
question ; and, accordingly, he subsequentlj'" moved the following 
resolution for that purpose, namely, " that it is the rule of this 
house, that a complicated question, which prevents any member 
from giving his free assent or dissent to any part thereof, ought, if 
required, to be divided." This question was debated at length, 



1006 APPENDIX. 

and was decided in the negative, on a division, 174 to 243. The 
original resolution was then divided into two parts, on the motion 
of Lord North, and the question ordered to be put separately upon 
each part. Since this decision, it has no longer been insisted on 
in either branch, that a complicated question could be divided on 
the suggestion or request of an individual member. This proceed- 
ing is remarkable, as being the first instance which I have met 
with, in the English parliamentary debates, of a proceeding analo- 
gous to the modern and American practice, on an appeal from the 
chau-. (See Comm. Jom-. XXXII. 707, 710.) These proceedings, 
being very instructive in other respects, the record thereof is printed 
at length in the next number of this appendix. 



XIII. 

APPEAL FEOM THE SPEAKER'S DECISION IN THE HOUSE OF COMMONS. 

" The other order of the day being read, Su* Francis Vincent re- 
ported from the committee of the whole house, to whom it was 
referred to consider further the state of the ' nation, the resolution 
which the committee had dnected him to report to the house, — 
which he read in his place, and afterw^ards delivered in at the clerk's 
table, where the same was read, and is as follows, namely : — 

" Resolved, That it is the opinion of this committee, that this 
house, in the exercise of its judicature in matters of election, is 
bound to judge according to the la\\^ and custom of parliament, 
which is part thereof; and that the judgment of this house, de- 
clared in the resolution of the 17th day of February last, ' that 
John Willces, Esquire, ha\T.ng been, in this session of parliament, 
expeUed this house, was, and is, incapable of being elected a mem- 
ber to serve in this present parliament,' was agreeable to the said 
law of the land, and fully authorized by the law and custom of par- 
liament. 

" The said resolution being read a second time, and an objection 
being made, that the said resolution contained a compKcated ques- 
tion, and that it ^vas the undoubted right of any one member of 
the house to have it separated, before any question could be put 
upon it, JMr. Speaker was called upon by the house, to state what 
he understood to be the order of proceeding of the house in this 
respect ; and INIr. Speaker accordingly dehvered to the house his 
opinion thereupon. And a member of the house having, in his 
speech, made some observations upon "v\'hat had been said by IVIr. 
Speaker ; and Mr. Speaker offering his sentiments to the house, in 
answer to what had been observed by the said member ; exception 
was taken to some words used by iVIr. Speaker, in such answer ; 
which words being taken dovtm by a member of the house, were 
afterwards copied by the clerk at the table, and are as followeth : 
" When I expected candid treatment from that member, I was mis- 



APPENDIX. 1007 

taken ; for I find I am not to expect candor from that gentleman 
in any motions he is to make to the chair." 

"And the said words, so taken down, being read to the house, Mr. 
Speaker declared, that those were not the words which he had 
made use of ; but that they were as foUoweth : ' In candor, I hoped 
he would have informed me of the motion he intended to make ; 
but I now find, from what that member has said, that I am not to 
expect that candid treatment from him ; — for he said in his speech 
that, from this time forward, he will have no communication 
with the chair.' And Mr. Speaker declared, he did not mean any 
general reflection on the character of the member. And afterwards 
Mr. Speaker said : ' What I said, arose out of what I understood 
the member to have said. If he cUsclaimed candor with the chair, 
I had a right to say I was not to expect candor on that subject. I 
did not, in justice I ought not, to have made a general reflection 
upon the member's character ; but, if the member had said what I 
understood he said, I had a right to say what I did. I can make 
no apology for what I said, but will abide the sense of the house.' 

" Then a motion being made, and the question being put. That the 
words spoken by Mr, Speaker, from the chair, are disorderly, im- 
porting an improper reflection on a member of this house, and dan- 
gerous to the freedom of debate in this house. It passed in the 
negative. 

" Ordered, That the further consideration of the report from the 
committee of the whole house, to whom it was referred to consider 
further of the state of the nation, be adjourned till Monday morn- 
ing next, at twelve of the clock. 

"And then the house adjourned tiU Monday morning next, ten of 
the clock. 

" The other order of the day being read, the house resumed the 
adjourned consideration of the report from the committee of the 
whole house, to whom it v/as referred to consider further of the 
state of the nation. And a motion was made, and the question 
being proposed, That it is the rule of this house, that a complicated 
question be divided, an amendment was proposed to be made to 
the question, by inserting after the word 'question,' the words, 
' which prevents any member from giving his free assent or dissent 
to any part thereof, ought, if required, to.' And the said amend- 
ment was, upon the question put thereupon, agreed to by the 
house. Then the main question being put. That it is the rule of 
this house, that a complicated question, which prevents any mem- 
ber from giving his free assent or dissent to any part thereof, ought, 
if required, to be divided, — the house divided. The yeas went 
forth. 



« TeUers for the yeas, ^ ^^^^^^^ Meredith, 

J ' IVI n HATUDnwiu 

" Tellers for the noes, 
So it passed in the negative." 



Mr. Hampden, 

« TeUers for the noes, ^^' ^nslow, 

' Sir Charles VvHiTWORTn, 



174. 
243. 



1008 APPENDIX. 

" Ordered^ That the said resolution be divided into two parts, the 
first part ending at the word ' thereof;' and the question for agree- 
ing with the committee therein, be put upon each part separately. 
And the question being accordingly put, to agree TN-ith the commit- 
tee in the first part of the said resolution, That tins house, in the 
exercises of its judicature in matters of election, is bound to judge 
according to the la'w of the land, and the kno^m and established 
law and custom of parliament, which is part thereof; it was re- 
solved in the affirmative. Then a motion ^vas made, and the 
question being put, to agree vidth the committee in the second part 
of the said resolution, that the judgment of this house, declared 
in the resolution of the 17th day of February last, ' That John 
Willves, Esquire, ha-dng been, in this session of parliament, expelled 
this house, was, and is, incapable of being elected a member to 
serve in this present parliament,' was agreeable to the said law of 
the land, and fully authorized by the law and custom of parlia- 
ment, the house divided. The noes went forth. 

"TeUersfortheyea, ^^tj^,; g^^'^S/"'' 1 237- 

" TeUe. for the noes, X. cZ^, ^"™""" \ ^''- 

So it was resolved in the affirmative. 

"And then the house adjourned till to-morrow morning, ten of 
the clock." Comm. Jour. XXXII. 707, 710. 



XIV. 

APPOINTMEN'T OF COilMITTEES. 

IMr. Speaker Hunter, in his valedictory address on the 3d March, 
1841, in answer to the usual vote of thanks, said : — 

" To administer the rules fanly, is comparatively an easy task ; 
but there is great difficulty in organizing the committees of the 
house so as to do justice to all parties. As much in deliberation 
depends upon the statement of the proposition to be discussed, so 
the efficiency of this body depends greatly upon the constitution 
of the committees, which present most of the subjects upon which 
it acts. It is, therefore, important to the parties and the country, 
that the power of proposing, through these committees, should be 
fairly and rightly bestowed. To ascertain what is fair in the dis- 
pensation of this power, is the most difficult duty, as it should be 
the most anxious care, of a speaker. To say that I had developed 
the just principles of a just organization, would be to claim far 
more than I deserve. But that such principles may be established 
by a reference to the position of parties, and the nature of the 
questions to be considered < I do not doubt. 



APPENDIX, 1009 

" The party upon which it naturally devolves to propose a ques- 
tion, ought to have the power, it would seem, to present its propo- 
sition in the shape for which it is willing to be responsible. And, 
as the dilFerent parties hold the affirmative, according to the nature 
of the question, so ought the constitution of the committees to be 
varied. In the committees connected with the executive depart- 
ments, it would seem just that the friends of the existing adminis- 
tration should have the majority, to propose the measures which 
emanate originally from their party, and for which they are mainly 
accountable. In committees of investigation, it is equally clear 
that the opposition, who hold the affirmative, should have the 
majority and the power. And so, upon other questions, a reference 
to their nature, and to the views of the various sections of our con- 
federacy, will generally enable a speaker to approximate to just 
rules in constituting the committees which take charge of these 
measures. But, in aU cases, I have endeavored to guard the mi- 
nority upon the committee, in point of numbers and ability." 



XV. 

OF GRAND COMMITTEES AND COMMITTEES OF THE WHOLE HOUSE. 

The appointment of a few members, selected from the whole 
body, for the performance of some particular duty, furnishes so 
obvious and convenient a means of facilitating the transaction of 
business, in a legislative body, or other deliberative assembly, that 
it would be strange not to find the employment of committees a 
common practice in both branches of parliament, from the earliest 
period. Accordingly, in the most ancient of the journals of the 
commons, which are now extant, and as early as the year 1554, 
there are entries of the appointment of committees (Comin. Jour. 
I. 35, 41) ; and it scarcely admits of doubt, that this mode of pro- 
ceeding is as ancient, at least, as the separation of the commons 
from the lords, and their sitting apart as distinct branches of par- 
liament. 

The reason for the existence of those committees, which are now 
known as committees of the whole house, is not, however, equally 
obvious ; and, indeed, if there never had been any other ground for 
the use of committees, than the increased facility for the transac- 
tion of business, resulting from the employment of a few" selected 
individuals, in preference to a larger number, having no peculiar 
qualifications for the duty imposed upon them, committees of the 
whole, as they would possess no advantages in the way of business 
over the same members sitting as a house, would probably have 
never become an estabfished mode of parliamentary procedure. 

The origin and use of these committees must, thi^refore, be 
sought in some other som-ce than the mere convenience of parlia- 

85 



1010 APPENDIX. 

mentary procedure j and, by recurring to the history of the period 
when they were first introduced, it will be found, that they were 
the offspring of circumstances of a different character; and that 
they were invented, not to facihtate the passing of bills, in the 
ordinary course of legislation, but to aiibrd means for bringing for- 
ward and discussing the great constitutional questions wliich were 
agitated in the parhaments of the first Stuarts. 

In the first parliament of James, which met on the 19th March, 
1603, the house of commons, " by reason of more charters granted 
by his majesty, as also by their attendance in greater multitudes," 
than had been usual, was more numerous than had ever before 
assembled; among its members, were many of the most distin- 
guished statesmen, lawyers, and men of learning, as well as gentle- 
men of weight and character, in the kingdom ; and, the assembling 
of a parliament, convened by a sovereign who united in his person 
the crowns of England and Scotland, and was the undisputed heir 
of the throne, was in itself an event of more than common impor- 
tance and interest to the whole people. 

In an assembly of the size and character of this house of com- 
mons, it was almost a thing of course, that committees appointed 
for the consideration of important and weighty matters, should 
consist of as many members, at least, as could act with efficiency ; 
and, Avhere the principal purpose of a committee was to bring to- 
gether information from all the different parts of the kingdom, with 
respect to the subject in hand ; or where the matter referred was 
one, in reference to which the house could thereby testify their 
sense of its weight and importance ; the selection of a large num- 
ber of members for the ser\ice was an obvious means for the 
accomplishment of the object in view. 

It appears, accordingly, from the journals of the house of com- 
mons, that several of the committees appointed dming the first 
session of this parliament, were of extraordinary magnitude. 
Thus, a committee appointed on the fifth day of the session, to 
consider the three grievances suggested by Su- Edward Montague, 
consisted of aU the privy councillors who were members, and of 
fifty-seven others specially named (Comm. Jour. I. 151) ; a com- 
mittee to confer with the lords, touching the union, consisted of 
one hundred members specially named (lb. 172), and, being 
afterwards directed to attend the king, for the purpose of hear- 
ing hun explain his meaning in the matter of the union (lb. 179), 
was enlarged by the addition of forty-tvvo members specially 
named, with liberty to any member of the house, though not 
named, to accompany them to the king (lb. 180) ; a committee, 
to consider of the abuses of pm'veyors, consisted of forty-seven 
members specially named (lb. 151) ; a committee on matters of 
religion was appointed of tu^enty-nine members, by name, and aU 
the privy councillors who were members (lb. 172, 173). Com- 
mittees of this character were commonly designated as great, or 
grand committees (lb. 215). 



APPENDIX. 1011 

In the second and third sessions of this parliament, committees 
appointed to consider the topics above adverted to, and others of a 
similar character, — such as the abuses of purveyors, matters of 
religion, and grievances, — also consisted of large numbers of 
mimbers, and were known as the great or grand committees for 
religion, grievances, etc. ; but, it was not until the ihird session, 
and in reference to a subject of a different character, that a com- 
mittee was first appointed of the whole house. 

In pursuance of an act passed at the preceding session, an 
" instrument of union " between the two kingdoms had been signed 
and sealed by certain commissioners appointed for the purpose. 
This instrument being commun'cated to both houses, the lords 
requested a conference with the commons, in order that there m'ght 
be some further proceeding in the business, and appointed a com- 
mittee of forty to conduct the conference on their part. The 
commons, in answer, resolved not to confer, but to meet the com- 
mittee of the lords with a committee of their own members, to the 
number of one hundred and eleven, to hear what the lords should 
propound, and to report the same to the house (Comm. Jour. I. 324). 
Shortly afterwards, the subject was again brought forward in the 
house, and a discussion ensued as to what further proceedings should 
take place ; and a motion was made, that the instrument of union 
should be first debated, and then committed, and that " the ivhole 
house (saving the commissioners) should be of the committee ; " but 
the house acceded to the motion, only so far as to resolve that the 
instrument should be committed, and " that the committee named 
for the meeting with the lords should be read, and that those (with 
others added) should stand for a committee in this business." The 
committee was then read, and enlarged by the appointment of forty- 
two members by name, and of all the lawyers of the house, the 
burgesses of all post towns, and the knights and burgesses of all 
the northern counties (lb. 326). Considering the size of the com- 
mittee, as actually constituted, it can hardly be supposed, that the 
objection to a committee of the whole house had any reference 
to the increased number of which the committee would thereby 
be made to consist. 

After some further proceedings between the two houses, a bill 
was presented to the house, by the speaker, ready drawn, for the 
continuance and preservation of the union, (Comm. Jour. I. 368,) 
which was read a tirst and second time, and moved to be commit- 
ted. It was now again attempted, and with better success, to 
make the committee of the whole house ; for, it being " affirmed, 
that if Mr. Speaker were absent, the whole house might be a com- 
mittee,^' it was thereupon " thought fit to commit the bill to the 
whole house, Mr. Speaker only excepded^' (lb. 370, 371). It may 
be conjectured, from the terms, in which this order is entered in 
the journal, that the reason, why the motion for a committee of 
the whole was not successful, when previously made, was a doubt 



1012 APPENDIX. 

in the minds of the house, as to the regularity of such a proceed- 

It is probable, that this committee sat, lil^e other great commit- 
tees, in the house, when the house w^as not sitting ; and it appears, 
from an entry in the journal, (Comm. Jour. I. 377,) that on one 
occasion, at least, the committee sat in the court of wards, while 
the " speaker, "with the officers, and sundry members of the house, 
being assembled, sat in the house, from eight o'clock until eleven ; 
and then did arise and depart, "without motion made or bill 
read." 

The bill being reported by the committee, and amended agree- 
ably to then report, passed the house, and was sent to the lords. 
Li that branch, it passed -^uth amendments, and the biU and amend- 
ments were sent to the house for their concurrence (Comm. Jour. 
I. 387). The amendments, being twice read in the commons, were 
" coiumitted to the great committee, named upon the second read- 
ing of the bill itself in this house : And moved, that JNIr. Speaker 
might depart, and the committee, being compounded of the whole 
house, and now together, and the busmess of the house very little, 
might (for saving of time) presently enter into consideration of their 
3harge ; which, after some dispute, whether it were fit or no, being 
without precedent, seldom moved, and carrying with it no decorum, 
in respect of Mr. Speaker's ordinary and necessary attendance upon 
the house tUl eleven o'clock, grew to a question, namely, whether 
the committee should now sit, or in the afternoon, and resolved, 
upon question, they should meet in the afternoon, and not now" 
(lb. 387, 388). It appears, from these proceedings, that the com- 
mittee of the commons on this important biU " of hostile laAVS," 
as it was called, was the first committee, which, in point of num- 
bers, embraced the whole house, the speaker excepted; but it 
differed from modern comiTdttees of the Avhole, inasmuch as it 
was thought necessary to exclude the speaker expressly, and it was 
not considered as consistent T\dth order and decorum, for the com- 
mittee to sit, or, in other words, for the house to be turned into a 
committee, dming any part of the time of the usual sitting of the 
house. It was not mitil the next, being the last, session of this par- 
liament, that the house were able to get over the point of decorum, 
for the sake of convenience. 

At the beginning of this session, general committees (as they 
were called) were appointed for the consideration of aU matters of 
importance ; the form being usually, in the first place, to appoint 
certain members by name, then to add to them certain classes, as, 
for example, the privy council, or the lawyers, and lastly, a general 
clause, as, "any of the house to be admitted," or "whosoever will 
come to have voice," including the residue of the house. One of 
the committees of this session was a com.mittee of the whole on 
tenures and wardships, which was directed to sit every other day in 
the house, to begin at seven or eight and to sit till half an hour 



APPENDIX. 1013 

after nine in the morning, and the house to sit till half an hour after 
eleven. This committee was probably the first that ever sat in the 
house, during the time assigned for the sittinp; of the latter ; in con- 
sequence, no doubt, of its being found convenient, in order to enable 
the committee to finish their business on a given day, to continue 
the sitting on that day until after the time appointed for the house 
to sit ; for, on the last day the committee sat, it appears from an 
entry in the journal, that " this day the committee for tenures, etc., 
sat till half an hour after eleven ; the speaker, from nine, sitting in 
the clerk's chair ; the clerk standing at his back ; and Mr. Recorder, 
the moderator of the committee, sitting on a stool by him" (Comm. 
Jour. 1. 414) ; and, from the fact, that business was transacted in the 
house on the same day, it is certain that the house must have been 
resumed when the committee had concluded its labors. The inno- 
vation thus introduced very soon after became an established usage. 
At first, the practice was introduced for the general committees, 
which usually sat in the afternoon, to meet occasionally in the morn- 
ing, and to sit till the speaker took the chair (lb. 422) ; at length it 
was perceived, that any of the committees of the whole, without 
impropriety, but greatly to the convenience of the house, might be 
directed to sit, at any time, during the sitting of the house ; the 
speaker when the practice first began retiring from the house to the 
committee chamber, and returning and resuming the chair, but, at 
last, merely sitting down, without leaving the house, and again 
ascending the chair whenever it was necessary or proper that the 
house should be resumed (lb. 429). During the residue of ihis 
session, committees of the whole were frequently appointed, sitting 
sometimes like other committees in the afternoon, and sometimes 
like committees of the whole, in more modern times, during the 
sitting of the house. The practice became still more general in the 
parliaments subsequently called by James and his successor ; and, 
in the fifth of the latter sovereign, — the celebrated long parliament, 
— committees of the whole became, what they now are, a part of 
the regular and established system of parliamentary procedure. 

In the foregoing remarks, the history of the introduction and 
establishment of this form of proceeding has been traced. It re- 
mains now to be seen what advantages, if any, it possessed over 
the ordinary mode ; for, except that it furnishes an occasional relief 
to the speaker, and that members are allowed, in committee, to 
speak more than once to the same question, it is difficult, at the 
♦ present day, to perceive any other difference between the house, 
and a committee of the whole house, than that the speaker presides 
in the former, and a chairman in the latter. 

The appointment of large committees, which, as has been seen, 
was quite common, if it did not commence, in the first parliament 
of James L, — a custom originally practised, perhaps, more for the 
purpose of testifying the interest of the house in the measm'e or 
Bubject referred, than with a view to a more efficient action, — was 

85* 



1014 APPENDIX. 

very soon discovered to be the most efficacious means of accom 
plishing the pm-poses which the great parliamentary leaders of the 
commons, in the reigns of the first Stuarts, had in vie^v. A coni- 
mittee, however large, was still but a committee ; it could not pro- 
ceed, indeed, ^vithout the authority of the house ; but, once ap- 
pointed and authorized, it could then proceed, even in matters of 
the highest importance, wdth a degree of freedom and independence 
wholly unattamable at that time, consistently with the forms of 
proceeding in the house. 

The presiding officer of the house was the speaker. He was 
elected, indeed, by the house ; but the election Vv^as made by the 
voices, and not by ballot ; the nommation always came from some 
one of the great officers of State ; and the speaker elect, if not 
agreeable to the king, might be rejected by him. It could hardly 
be expected that this officer, deriving his honors, in the ffi-st in- 
stance, from the influence of the sovereign, and looking forward to 
further favors from the same source, should be inclined, or, if -wil- 
ling, should be able, to hold an even balance bet^veen royal prerog- 
ative on the one hand, and the rights of the people on the other. 
We accorduigly find that the official influence of the speaker was 
sometimes, at least, exerted in favor of the prerogative ; he consid- 
ered it his duty, -when commanded by the king, to adjourn the 
house, without putting a question (Comm. Jour. I. 375, 376) ; he 
thought it not beneath his dignity to go to the king, when sent for, 
to inform him of the proceedings of the house, and to take \^dth 
him " a little note of the clerk's book," for the same purpose (lb. 
500) ; and being, ordinarily, a member of the khig's privy coun- 
cil, he could not but be fully acquainted with all the plans and 
measures of the court party. 

The clerk of the house, originally, in fact, and to this day, in 
name, the under clerk of the parliament, appointed to attend on 
the commons, held his office, not by the election of the house, but 
by a patent from the kmg, for his life, and with power to make, and 
discharge the duties of his office by, a deputy. Such an officer 
would not be likely to withhold the records and papers of the 
house, then in his personal custody, and not kept in any building 
or apartment belonging to the house, or under its control, from the 
inspection of the sovereign or his council ; and it is matter of his- 
tory, that the clerk of the house, in the thhd parliament of James 
L, by the king's command, attended with Ms journal book, at a 
meeting of the council, where the king, with his own hand, tore ■- 
out the record of the famous protestation of the commons concern- 
ing their privileges, which the house had solemnly directed to be 
entered in the journal, there to remain of record. (Hansard, Pari. 
H. I. 1361, 1362 ; Comm. Jom-. I. 668.) 

The sergeant-at-arms, also, was an officer appointed by the king, 
and holding his office at the king's pleasm-e. His functions, as the 
executive officer of the house, were by no means unimportant. It 



APPENDIX. 1015 

was a part of his duty to take care that no strangers shonld Avitness 
the proceedings, to keep the doors and avenues of the house for 
the free access and departure of the members, to serve all the war- 
rants and processes of the house, and to have the custody of all 
persons arrested and brought before the house by its order. It is 
not probable that this functionary ever had it in his power to exer- 
cise much, if any, influence upon the proceedings of the house ; 
but, as an officer appointed by the sovereign, and dependent on 
him, his feelings may not unreasonably be supposed to be on the 
side of the crown, rather than on that of the people. 

If the officers of the house were thus, to a greater or less degree, 
exposed to the influence of the power of the crown, and therefore 
liable to become subservient to those by whom it was wielded, the 
forms of proceeding were not less unfriendly to a free, full, and in- 
dependent discussion of topics, which might be distasteful to the 
sovereign. It was in the power of the individual members to in- 
troduce such topics as they pleased, and to submit motions and 
questions for the consideration of the house ; but it was the usual, 
and doubtless considered the more regular course, for the speaker 
himself to frame the question, from the turn of the debate, whether 
motions were made or not ; and thus the questions submitted to 
the house, were greatly in the power of the speaker, and of those 
about the chair. The rule, also, that no member should speak 
more than once to the same question, which, as a rule of order, was 
strictly observed in the house, though sufficient, perhaps, where a 
subject had been so matured, that nothing remained but to say yes 
or no to it, was not by any means favorable to those discussions, 
which were necessary to mature any business for the decision of 
the house. A third circTimstance, connected with the forms of pro- 
ceeding, was the manner in which the clerk of the house performed 
the duties of his oihce. During all the parliaments of James, and 
the iirst three of Charles I., the journals contain not only the votes, 
orders, and resolutions of the house, and the reports of committees, 
but also short notes of the speeches and motions of the members. 
This practice seems to have been pursued by the clerk, either be- 
cause he considered it a part of his official duty, or because it was 
an acceptable service to those from whom he derived his appoint- 
ment ; but, as appears by the following proceeding, it seems never 
to have been sanctioned by the house. In the third parliament of 
Charles I., April 17, 1628, the lords having sent a message to the 
commons, requesting that the clerk might attend the lords, with the 
journal book of a preceding parliament, touching " something then 
delivered by a learned member " of the commons, relative to 
a certain bill, the commons made answer, " that there was no 
resolution of the house, in the case mentioned ; and that the 
entry of the clerk, of particular men's speeches, was without war- 
rant at aU times, and, in that parliament, by order of the house, 
rejected and left; and therefore not thought fit to be sent up to 



1016 APPENDIX. 

their lordships." (Comm. Jour. I. 884.) The method of taking 
notes and making entries, as practised by the clerks in the parlia- 
ments above mentioned, appears to have been introduced with the 
first parliament of James ; the journals of the commons in the 
reigns of Elizabeth and her predecessors, as far back as the journals 
are extant, contain only minutes of the things done and passed in 
parliament, but no notes of what w^as said or proposed by any of 
the members ; the new method continued only untU the third par- 
liament of Charles, in which the commons resolved, that the enter- 
ing of particular men's speeches, was without warrant at aU times ; 
and it appears to have been laid aside about the time of the pass- 
ing of that resolution. The last cifcumstance to be mentioned, 
which was not without its influence upon the action of the house, 
was the secrecy with which all its proceedings were required to be 
conducted. Strangers, as all but members were called, were care- 
fully excluded from the sittings ; and it was a breach of privilege, 
then and long afterwards, punishable with great severity, for any 
of the members to divulge or publish an account of what took 
place within the walls of the house. While, therefore, the king had 
all the knowledge of what was passing in the house, which could 
be derived from an inspection of the clerk's books, and from the 
oral communications of the speaker, or other members of the coun- 
cil, the people were as carefully kept in ignorance of what it equally 
concerned them to know. 

According to the constitution of ordmary committees, and the 
rules of proceeding, by which they were governed, none of these 
inconveniences were likely to result. Committees were presided 
over by a chakman of thek own appointment ; no record was kept 
of their proceedings but what was made by him ; every member 
.had full liberty to speak as often as the committee might please to 
hear him ; and it was only when the committee came to make 
their report, that their proceedings were inscribed on the journals 
of the house. When, therefore, it had once been settled that the 
whole ho use could be of a committee, it was an obvious expedient, 
whenever the occasion demanded a degree of freedom and inde- 
pendence incompatible with the ordinary forms of proceeding, to 
turn the house at once into a committee. It accordingly became 
the practice during the reign of James I. and Charles I. for the 
house of commons, generally at the commencement of each session, 
to appoint committees to consider of aU the great subjects of inter- 
est, which they undertook to investigate ; which committees, from 
being at first large committees, the members of which were spe- 
cially named, came at length to be of the whole house, either gen- 
erally named, or specially named, with authority to all members of 
the house, who chose to do so, to attend and have voices. These 
committees were in general presided over by the popular leaders ; 
they had authority to receive petitions and complaints from aU the 
citizens without the intervention of the house ; then* proceedings 



APPENDIX. 1017 

were open to the public, or with closed doors, as might best suit 
the occasion ; all papers and documents presented to them remained 
in their custody ; the officers of the house, unless specially directed 
to do so, did not attend then* sittings ; they sat in the house at 
such times as were not appointed for the sitting of the house ; or 
when the business in hand required them to sit, during the time 
appointed for the house to sit, the house was resolved into the 
committee. 

These general committees, as they were appointed, from time 
to time, bore diflferent appellations, according to the subjects re- 
ferred to them ; but, at length, those that were appointed for the 
consideration of certain subjects, within the peculiar jurisdiction 
of the commons to investigate, came to be denominated the com- 
mittees for religion, for grievances, for com-ts of justice, and for 
trade, to whicli at the commencement of the long parliament, was 
added a committee for Irish affairs. These were committees of the 
whole house, which sat as committees in the afternoons, when the 
house did not sit ; and, when occasion required, sat during the sit- 
ting of the house, as committees of the whole, properly so called. 
Sometimes, when they were directed by the house to sit in the 
afternoon, the speaker was also directed to atrend, either at the 
same time, or after some little interval, when the business of the 
committee might be expected to be completed ; in order to take the 
chan and make a house, if any thing should occur to render it 
necessary, or to receive the report of the committee, when they 
should have gone through the subject referred to them. 

In order to give some idea of the advantages, at the period ad- 
verted to, of proceeding in the investigation of corruptions and 
abuses, by committees, rather than by the house itself, the practice 
in reference to the preferring of petitions deserves specially to be 
mentioned. In consequence of the danger to which petitioners 
were exposed, who gave information of abuses in the public offices, 
or of corruption of the great officers of government, petitions were 
at first allowed to be delivered, without having any names attached 
to them. But this practice was found to be attended with danger 
on the other side ; for, if petitions thus dehvered should turn out 
" to contain libels or treasons," then, " not knowing from whom 
they were received, the burden might lie upon the house." A 
middle course was therefore devised ; which was, that the name of 
the petitioner should, in the first instance, be put to his petition ; 
and that when the petition had been read and allowed, the name 
of the petitioner should be torn off; so that no man should know 
by whom it had been preferred. (Comm. Jour. I. 465.) By this 
expedient, all danger, to the house and the members, on the one 
hand, and to petitioners, on the other, was obviated. 

After these general committees had thus become established, as 
a part of the regular parhamentary machinery, it became the prac- 
tice to pass orders for their appointment, at the commencement of 



1018 APPENDIX. 

each session, as standing committees of the house, under the names 
of the grand committees for religion, grievances, courts of justice, 
and ti-ade. This practice continued, — though from the time of the 
restoration, the committees were never called upon to sit, — until 
the first session of the Reformed Parliament in 1833, when, the 
orders for their appointment not being renewed, they were of com'se 
laid aside. 

If any further proof were needed of the great advantages which 
the popular party derived from proceeding by means of commit- 
tees, during the reigns of James I. and Charles I., it may be found 
in the following remarkable passage of the declaration promulgated 
by the latter immediately after the dissolution of his thu'd parha- 
ment in March, 1620 : — 

" We are not ignorant how much that house " (the commons) 
" hath of late years endeavored to extend their privileges, by setting 
up general committees for religion, for courts of justice, for trade, 
and the like ; a course never heard of tiU of late : so as where, in 
former times, the knights and burgesses were wont to communicate 
to the house such business as they brought from their countries ; 
now, there are so many chairs erected, to make inquiry upon 
all sorts of men, where complaints of all sorts are entertained, to 
the insufferable distm-bance and scandal of justice and govern- 
ment, which, having been tolerated awhile by our father, and our- 
self, hath daily grown to more and more height; insomuch that 
young lawyers, sitting there, take upon them to decry the opinion 
of the judges ; and some have not doubted to maintain, that the 
resolutions of that house must bind the judges, a thing never heard 
of in ages past. But, in this last assembly of parhament, they 
have taken on them much more than ever before." (Rushworth, I. 
App. 7.) 



APPENDIX. 



1019 



XVI. 



AMENDMENTS BETWEEN THE TWO HOUSES. 

The Act for preventing Occasional Conformity. 



The commons 
agreement 
and disagree- 
ment to the 
amendments 
made hg the 
lords to the 
bill for pre- 
venting occa- 
sional confor- 
mity, xvith the 
commons a- 
mendments to 
the lords a- 
mendments. 



Agreed to by 
Uae commons. 



Disagreed to 
by the com- 
mons. 

Disagreed to 
by the com- 
mons. 



THE BILL AND AMENDMENTS. 



Decemb. 2, 1702. 

As nothing is more contrary to 
the profession of the Christian reU- 
gion, and particularly to the doc- 
trine of the Church of England, 
than persecution for conscience 
only ; in due consideration where- 
of, an act passed in the first year 
of the reign of the late king Wil- 
liam and queen Mary, entitled, An 
act for exempting- their majesties^ 
Protestant subjects, dissenting from 
the Church of England from the 
Penalties of certain laws ; which 
act ought inviolably to be ob- 
served, and ease given to all 
consciences truly scrupulous ; 
nevertheless, "whereas the laws 
do provide that every person to 
be admitted into any office or 
employment should be conform- 
able to the church, as it is by 
law established, by enacting, that 
every such person, so to be ad- 
mitted, should receive the sacra- 
ment of the Lord's Supper, ac- 
cording to the rites and usage of 
the Church of England; yet 
several persons dissenting from 
the church, as it is by law estab- 
lished, do join with the members 



The amendments made 
by the lords to the bill 
for preventing occasional 
conformity. 



Line 9. After \_Mary'\ 
add [of glorious memory"]. 



L. 1 6. After [scrupulous] 
add [but] 

L. 1 7. Leave out from 
[whereas~\ to [several] in 
the 27th line. 



1020 



APPENDIX. 



Disagreed to 
by the com- 
mons. 



Disagreed to 
by the com- 
mons. 



Lord, one thou- 

two, 

, who 



thereof in recemng the sacrament 
of the Lord's Supper, to qualify 
themselves to have and enjoy such 
offices and employments, and do 
afterwards resort to conventicles 
or meetings for the exercise of 
religion in other manner than ac- 
cording to the liturgy and prac- 
tice of the Church of England, 
which is conti-ary to the intent and 
meaning of the laws abeady made. 
Be it therefore enacted by the 
queen's most excellent majesty, 
by and with the advice and con- 
sent of the lords spmtual and 
temporal, and commons in par- 
liament assembled, and by autho- 
rity of the same, that if any 
person or persons after the first 
day of March, which shall be in 
the year of our 
sand seven hundred and 
either peers or commoners 
have or shall have any office or 
offices, civil or military, or receive 
any pay, salary, fee, or wages, by 
reason of any patent or grant 
from her majesty, or shall have 
any command or place of trust 
from or under her majesty, or 
from any of her majesty's prede- 
cessors, or by her or their autho- 
rity, or by authority derived from 
her or them, within the kingdom 
of England, dominion of Wales, 
or town of Ber\\ick upon Tweed, 
or in her majesty's navy, or in 
the several islands of Jersey and 
Guernsey, or shall be admitted 
into any service or emplo}Tiient 
in her majesty's household or 
family ; or if any mayor, alder- 
man, recorder, bailifF, town clerk, 
common council-man, or other 
person bearing any office of ma- 
gistracy or place of trust, or other 
employment relating to or con- 
cerning the government of the 
respective cities, corporations, 



L. 3. Leave out [sucA] 



L. 41. Leave out from 
[/amilyl to [shaW] in 
the tenth line on the 
next page. 



APPENDIX. 



1021 



Agreed to by 
the commons. 



boroughs, cinque-ports, and their 
members, and other port-towns 
within the kingdom of England, 
dominion of Wales, and tosvn of 
Berwick upon Tweed, who by 
the laws are obliged to receive 
the sacrament of the Lord's sup- 
per, according to the rites and 
usage of the Church of England, 
shall at any time after their ad- 
mission into their respective offi- 
ces ox employments, or after 
having such grant as aforesaid, 
during his or then- continuance 
in such office or offices, employ- 
ment or employments, or the 
enjoyment of any profit or ad- 
vantage from the same, shall 
resort to or be present at any 
conventicle, assembly, or meet- 
ing, under color or pretence of 
any exercise of religion, in other 
manner than according to the lit- 
urgy and practice of the Chm-ch of 
England, in any place within the 
kingdom of England, dominion of 
Wales, and town of Berwick up- 
on Tweed, at which conventicle, 
assembly, or meeting, there shall 
be five persons or more assembled 
together, over and besides those of 
the same household, if it be in 
any house where there is a family 
inhabiting, or if it be in an house 
or place where there is no family 
inhabiting, then where any five 
persons or more are so assembled, 
as aforesaid, shall forfeit the sum 



L. 1 7. Leave out [sJialfj 
and read [knowingly and 
wiUingly.'] 



Agreed to by 
the commons 
with the amendments following, viz. : 

1. After the woi'd [or] add [sliall 
knowingly and ivillingly be present.'] 

Afler the word \any] add [such.'] 

After the word [ineeting] leave out 
\where'\ and insert [in such house or 
place, as aforesaid, although.'] 

After [liturgy] leave out [is] and 
insert [he there.] 

After [used] leave out [and where] 
and insert [in case.] 

86 



L. 38. After [aforesaid] 
add [or at any meeting 
where her liturgy is used, and where 
her majesty and the princess Sophia shall 
not he prayed for in express words, ac- 
cording to the liturgy of the Church of 
England.] 

1. To which amendments of the com- 
mons (to the lords' amendment) as en- 
tered on the other side, the lords agreed, 
with the addition following: 

2. After the words [prayed for] in 
the commons amendment, add [in pur- 



1022 



APPENDIX. 



Disagnied to 
by the com- 
mous. 



Disagreed to 

by the com- 
mons. 



Clause [.4] 
agreed to by 
the commons. 



of one hundred pounds, and five 
pounds for every day, that any 
such person or persons shall con- 
tinue in the execution of such 
office or employment, after he or 
they shall have resorted to or been 
present at any such conventicle, 
assembly, or meeting as aforesaid, 
to be recovered by him or them 
that shall sue for the same, by any 
action of debt, bill, plaint, or in- 
formation ; in any of her ma- 
jesty's com-ts at Westminster, 
wherein no essoign, protection, 
or wager of law shall be allowed, 
and no more than one imparlance. 

And be it fm-ther enacted, that 
every person convicted in any 
action to be brought, as aforesaid, 
or upon any information, present- 
ment, or indictment in any of her 
majesty's courts at Westminster, 
or at the assizes, shall be disabled 
from thenceforth to hold such of- 
fice or offices, employment or em- 
ployments, or to receive any profit 
or advantage by reason of them, 
or of any grant, as aforesaid, 
and shall be adjudged incapable 
to bear any office or employment 
whatsoever, within the kingdom 
of England, dominion of Wales, 
or town of Berwick upon Tweed. 

Provided always, and be it fur- 
ther enacted by the authority 
aforesaid, that if any person or 
persons who shall have been con- 
victed, as aforesaid, and thereby 



L. 1. Leave out \_One 
hundred pounds, and Jive 
pounds for every day tltat 
such person or persons 
shall continue in the exe- 
cution of such office or 
employment'] and instead 
thereof insert [twenty 
pounds, to be divided into 
three parts, whereof one 
third part to the queen, 
one other to the poor of 
the parish ichere the of- 
fence shall he committed, 
and one third pai't to the 
inforiner.'] 



Line 28. Leave out fi'om 
[aforesaid'] to the end of 
the bill. 



And add the clauses A, 
B, C, D, E. 

[A] Provided that no 
person shall suffer any 
punishment for any of- 
fence committed against 
this act, unless oath be 
?nade of such offence be- 
fore some Judge or Justice 
of the peace {loho is here- 
by empowered and re- 
quired to take the said 
oath^ within ten days af- 
ter the said offence com- 
mitted, and unless the said 



After [jnaj'esty'] add [tohoju God long 
preserve, Catherine the Queen Dowager]. 

After [Sophia] add [or such othei-s as 
shall from time to time be lawfully ap- 
pointed to be prayed for]. 

After [he] add [there]. 

2. To which adtilition of the lords 
(to the amendments made by the com- 
mons to the lords' amendment) as en- 
tered on the other side, the commons 
agreed. 



suance of an act passed in the first 
year of king William and queen Mary, 
entitled. An act declaring the rights 
and liberties of the subject, and set- 
tling the succession of the crown ; and 
the act passed in the twelfth and thir- 
teenth of king William the Third, enti- 
tled. An act for the further limitation 
of the crown, and better securing the 
rights and liberties of the subject.] 



APPENDIX. 



1023 



Clause [i?] 
disagret',d to 
by the com- 
mous. 



Clause [C] 
diaagreed to 
by the com- 
mons. 



Clause [Z)] 
disagreed to 
by the com- 
mons. 



made incapable to hold any office 
or employment, shall, after such 
conviclion, conform to the Church 
of England for the space of one 
year, without having been pres- 
ent at any conventicle, assembly, 
or meeting, as aforesaid, and re- 
ceive the sacrament of the Lord's 
supper at least three times in the 
year; every such person or per- 
sons shall be capable of a grant 
of any office or employment, or 
of being elected into or holding 
of any the offices or employments 
afovci-aid. 

Provided also, and be it en- 
acted, that every person so con- 
victed, and afterwards conforming 
in manner, as aforesaid, shall at 
the next term after his admission 
into any such office or employ- 
ment, make oath in writing, in 
any of her majesty's courts at 
Westminster, in pulilic and open 
court, between the houi's of nine 
of the clock and twelve in the 
forenoon, or at the next quarter- 
sessions for that county or place 
where he shall reside, that he has 
conformed to the Church of Eng- 
land for the space of one year 
before such his admission, with- 
out having been present at any 
conventicle, assembly, or meeting, 
as aforesaid, and that he has re- 
ceived the sacrament of the Lord's 
supper at least three times in the 
year, which oath shall be there 
enrolled and kept upon record. 

Provided also, and be it further 
enacted by the authority afore- 
said, that if any person after such 
his admission, as aforesaid, into 
any office or employment, shall 
a second time offend, in manner 
aforesaid, and shall be thereof 
lawfully convicted, he shall for 
such offence incur double the 



offender he j^rosecufed for 
the same within three 
months after the said 
offence committed ; nor 
shall any pe7-son be con- 
victed for any such of- 
fence, unless upon the 
oath of tico credible wit- 
nesses at tlie least. 

[BJ Provided always, 
and be it enacted, that 
from and afer the said 
first day of March, no 
Protestant Dissenter shall 
be compelled or compella- 
ble to take, serve, hold, or 
bear any office or place 
whatsoever, for the taking, 
serving, or holding where- 
of he cannot be duly quali- 
fied by law, without re- 
ceiving the holy sacrament 
according to the usage 
of the Church of Eng- 
land, and also making 
and subscribing the decla- 
ration mentioned in the 
statute, made 25 Car. 2, 
entitled, An act for pre- 
venting dangers -which 
mi\y happen from Popish 
recusants, aJiy statute, 
laiv, usage, or other thing 
to the contrary notivith- 
standing. 

[C] Provided never- 
theless, that this act shall 
not extend to the univer- 
sity churches in the uni- 
versities of this realm, or 
either of them, when, or 
at such times as any ser- 
mon or lecture is preach- 
ed or read in the same 
churches, or any ofthein, 
for, or as the public uni- 
versity sermon or lectwe, 
but that the same ser- 
mons and lectures may 
be preached or read, in 
such sort or manner, as 
the same have been here- 
tofore preached or read, 
this act, or any thing there- 
in contained to the con- 
trary, in anywise notwith- 
standing. 



1024 



APPENDIX. 



Clause [E] 
disagi-eed to 
by the com- 
mons. 



penalties before mentioned, to be 
recovered in manner, as aforesaid, 
and shall forfeit such office or 
employment, and shall not be 
capable of having any office or 
employment, until he shall have 
conformed for the space of three 
years, in manner aforesaid, where- 
of oath shall be made in writing 
in one of her majestie's courts at 
Westminster, or at the quarter- 
sessions of the county where he 
resides. 



[D] Provided, that no 
person shall incur any the 
penalties in this act, by 
resorting to, or being pre- 
sent at the religious exer- 
cises used in the Dutch 
and French languages in 
churches established in 
this realm in the reigns 
of king Edward the Sixth, 
or of queen Elizabeth, or 
of any other king or queen 
of this realm. 

[E] Provided always, 
and be it enacted by the 
authority aforesaid, that 



nothing in this act shall 
extend, or be construed to extend to any governor or governors of any hospital or hos- 
pitals, or to any assistants of any corporation or corporations, workhouse or work- 
houses, constituted, erected, or employed for the relief, and setting of the poor on loork, 
and for punishing of vagrants and beggars ; all which said persons, and every of them, 
shall be, and are hereby exempted from all the penalties mentioned in this act, and are 
hereby adjudged and declared not to be subject or liable to any of the penalties or for- 
feitures mentioned in one act of parliament made in the twenty-fifth year of the reign 
of king Charles Hie Second, For preventing dangers which may happen from Popish 
recusants, ybr or by reasan of any of the aforesaid offices or employments. 



INDEX. 

86 * (1025) 



INDEX. 



[The figures refer to the numbers of the paragraphs.] 



ABSENCE, 

temporary, as affecting residence, 73. 
eligibility, 83. 
leave of, 26 7. 
ABJURATION. See Oath. 
ACCOUNTS, 

return of, to parliament, 909, 1048. 
congress, 928. 
ACTS OF PARLIAMENT. See Bills. 
ACTION ON THE CASE, 

by elector, for being prevented from voting, 90, 139. Appendix ELL 
ADDRESS, 

definition of, 802. 

in answer to royal speech, 891, 899, 2030. 

message, 892. 
on being informed of arrest of member, 894. 
to executive, 897. 
subjects of, 900. 

of parliament, joint, ceremonies at, 901. 
separate, " " 902. 

king's answer to, 906. 
to the crown, to obtain returns, 909 

motions for, 911. 
to introduce subject of bill, 2064. 
ADJOURNMENT, 

number requisite for, 244, 254, 258, 361, 368, 503, 509, 516, 525. 
of the debate, motion for, 1383, 1395. 
motion for, 1390, 1518, 1521. 

cannot be amended, 1523. 

effect of decision of, on main question, 1589, 1625. 
when may be made without motion, 1396. 
eff'ectof, 514, 1543, 1590. 
AGE, 

as a qualification of ^ member, 61, 70. 



1028 INDEX. 

ALIENS, 

not allowed to vote, 24, 32. 

not eligible to office, 56. 
ALLEGIANCE. See Oath. 
AMENDMENT, 

motions for, 1302, 1444. 

rules respecting, 1318. 

may be amended, 1454, 1523. 

"when cannot be introduced by a speecli, 1593. 

meaning of, 1302. 

forms and rules of, 1304, 1487. 

of an amendment, 1306, 1333. 

inconsistency of, 1309, 1311, 1363. 

may be withdrawn or modified, 1310. 

as to substance, 1311. 

to defeat motion, 1315, 1438. 

as to form, 1322. 

by leaving out words, 1323, 1343. 

as affecting main question, 1331, 1588, 1628. 

by inserting words, 1332. 

and leaving out words, 1335, 1353, 1439. 

by dividing motion, 1342. 

by filling blanks, 1354. 

by addition, transposition, etc., 1358. 

what, may be made without vote, 1361, 

by turning private into pubhc bill, 1368. 

which coheres to principal amendment, 2401. 

improper adoption or rejection of, 2404. 
APPEAL, 

from decision of presiding officer, 1460, 1464. See Appendix XIIL 
AEREST, 

members exempt from, 551, 569, 573, 615, 894. 
servants of, where exempt from, 576. 
how discharged from, 585. 

on civil process, not a disqualification for election, 596. 

witnesses exempt from, 997. 
ATHEISM, 

as a disqualification for membership, 80. 
ATTACHMENT, 

estates of members exempt from, 558, 569, 575. 
ATTAINDER, 

bills of, 759, 762, 764, 1038, 1060. 
ATTORNEY-GENERAL, 

may be directed to institute prosecutions, 1052. 

not legal counsellor to U. S. House of Representatives, 1066. 

BALLOT, 

election by, 94. 
definition of, 103. 
manner of voting by, 103. 



INDEX. 1029 

BALLOT — continued. 

may contain how many names, 104, 107. 
■when rejected for uncertainty, 104. 

on account of fraud, 106. 
when to contain designation of office, 105, 107. 
deposited in wrong box, 107. 
material and receptacle of, 109. 
must clearly designate person voted for, 110. 
additions or titles on, disregarded. 111. 
abbreviations and initials on, 112. 
name on, misspelled or unlike true name, 113. 
blank, 114. 
wrong name on, 171. 

containing names of persons eligible and ineligible, 175. 
distinguishing feature of vote by, 94, 179. 
voter not compellable to disclose, 199. 
BAR, 

meaning of, 355. 
BILLS, 

kinds of, 753. 

public, 754, 757, 1041, 2053. 

by whom prepared, 2114. 
legislative, 754. 
judicial, 754, 759, 2407. 
mixed, 755. 

proceedings on, as affected by nature of, 756. 
for a debt, 759. 
of attainder, 759, 762, 764. 
of pains and penalties, 759, 767. 
disqualifying and disabling, 759. 
royal assent to, 447, 888. 
hearing of parties on, 1031. 

new and different question on each stage of, 1591. 
parties named in, excluded from voting thereon, 1846. 
pecuniary interest in, as disqualifying from voting on, 1846. 
reported by committee, 1948. 
passing of, 2046, 2228. 

ancient practice respecting, 2048. 

communications between the two houses relative to, 2285, 2350. 
miscellaneous matters connected with, 2391. 
mistakes with regard to, 2391. 

in tliis country, constitutional provisions respecting, 2405. 
formalities in, 2406. 
by whom originated, 2047. 
definition of, 2055, 2172. 
form of, 2057, 2113. 

changed, 2163. 
must be introduced by authonty of house, 2058. 

how, 2081. 
•ubject of, may be introduced by petition, 2063. 



1030 INDEX. 

BILLS — continued. 

subject of, may be introduced by address or message, 2064. 

reading of docimient or record, 2065. 
motion, 2068. 
refeiTed to committee, 2073. 
brouglit in, on the debates of the house, 2070. 
heads for, 2072. 

house moved for leave to bring in, 2077, 2082, 2118. 
in reference to which preliminary' proceedings must take place in committee 

of the whole, 2079. 
committee to prepare and bring in, 2091. 
drawing of, 2092. 
title of, 2094, 2185, 2229. 
preamble of, 2100, 2177, 2182. 
enacting style of, 2101. 
purview or body of, 2103. 
provisos, exceptions, or savings in, 2104. 
schedules attached to, 2105, 2182. 
date of, 2106. 

general preparation of, 2109. 

must be drawn in conformity with the orders of the house, 2109, 2115. 
presentation and reception of, 2117. 
sent by one house to the other, 2122, 2129, 2230. 
stages or readings of, 2123. 

ancient practice respecting, 2125. 
subject of motions, 2175. 
commitment of, 2126, 2133, 2156. 
amendments of, 2126, 2219, 2224, 2164, 2171, 2180. 
additions, 2173, 2187. 
provisos, 2174. 

between the two houses, 2231. See Appendix, XYI. 
select committee on, 2234. 
improperly adopted or rejected, 2404. 
engrossment of, 2127, 2129, 2133, 2200, 2209. 
dropped, 2134, 2348. 
first reading of, 2135, 2166. 

if fixed for future day, 2140. 
ancient practice respecting, 2141. 
may be opposed, 2142. 
in U. S. house of representatives, 2143. 
motion to read a second time, 2146. 
second reading of, 2146, 2151. 

motion for, 2146, 2152. 

on day beyond close of session, 2153. 
fixing time for, 2147. 
stage at which a hearing commonly takes place, 2155. 

merits are debated, 2154. 
order of the ds.y for, 2151. 
committees on, instructions to, 2161. 
report of, 2192, 2199. 



J 



INDEX. 1031 

BILLS — continued. 

committees of conference on, 2258. 

report of, 2269. 
called by clauses, 2178. 
filling blanks in, 2183. 
union or division of, 2186, 2196. 
third reading of, 2200, 2209. 
recommitment of, 2206, 2226. 
printing of, 2227, 2373. 

authentication of, between the two houses, 2276. 
may be commenced where, 2295. 
money, 2303, 2361, 2369. 

if rejected, cannot be renewed at same session, 2307. 
contradictory, cannot be passed at the same session, 2313. 
of same substance with one already pending, cannot be moved for or Intro* 

duced, 2317. 
withdrawal of, 2116, 2330. 

takes place when, 2330, 2334. 
reasons for, 2332. 
mode of, 2337, 2340. 
motion for, 2339. 

followed by introduction of new bill, 2340. 
rejection of, 2341. 

motion for, 2342. 
effect of, 2344. 
by the other house, 2292. 
laying aside of, 2345. 

takes place when, 2345. 
clauses of, may be withdrawn when, 2338. 
resolve to proceed no further with, 2347. 

Bending documentary evidence with, from one house to the other, 2363. 
approval of, by executive, 2364. 

how signified, 2364, 2376. 
may be withheld, 2371. 
custody of, 2364, 2373, 2376, 2390. 

passed by both houses, practice In U. S. concerning, 2374. 
return of, by executive, with objections, 2379. 

passed notwithstanding, 2381 
lost or mislaid, 2396. 
ordered to lie on the table, 2397. 
order of notice on, 2398, 2408. 
vote on, incorrectly announced, 2402. 
private, 754, 758, 1039, 2407. 

must have preamble, 2100. 

by whom prepared, 2114. 

peculiar proceedings respecting, 2408. 

notices of intention to introduce, 2411. 

parliamentary agents for, 2412, 2421. 

office for business relating to, 2414, 2425, 2444, 2460. 

committees relative to, 2415, 2418, 2447. 



1032 INDEX. 

BILLS — continued. 

private, time for proceeding witli, 2420. 
how brought in, 2423, 2425. 
petitions for, 2425. 

time for presenting, 2422. 
may be opposed, 2426, 2447, 2474. 
hearing on, 2427, 2461. 
presentation of, to the house, 2435. 
referred to standing orders committee, 2435, 2461. 
■when and in what form presented, 2441. 
blanks in, 2441. 
printing of, 2443, 2497, 
readings of, 2444, 2504. 
unopposed, committees on, 2447. 

proceedings of, 2448. 
opposed, " " " " 2472. 

committees on, duties of, as to reporting, 2489. 

have no power to send for persons and papers, 2491. 
adjournment of, 2495. 
report of, 2497. 

proceedings on, 2499. 
two general rules of house of commons respecting, 2506. 
amendments to, proceedings between the two houses respecting, 2507 
must originate in which house, 2509. 
proceedings on, in house of lords, 2510. 
printed by the queen's printers, 2526, 2528. 
not printed, 2526, 2529. 
fees chargeable on, 2531. 
costs in respect of, 2532. 
local and personal, declared public, 2526, 2527, 2530. 
how proved in courts, etc., 2530. 
BLANKS, 

motions to fill, 1354. 
BLINDNESS, 

does not render ineligible, 60. 
BOOKS, 

reading from, in speech, 1662. 

during a debate, 1779. 
BRANCHES, 

equality and independence of, 1701. 

one cannot take notice of matters depending in the other tiU regularly com- 
municated, 1703. 
improper allusions by member of one, to the otner, disorderly, 1707, 1710. 
BRIBERY, 

as a disqualification to membership, 80. 
as affecting return, 172. 

election, 181, 186, 475. 
definition of, 186. 
how punishable, 189. 
of members or officers, 630. 



INDEX. 1033 

BRITISH COLONIES AND PROVINCES, 

legislatures of, how convened, 85. 
BUSINESS, 

general order of, 1527. 
intervening, 1394 n. 

CALL, 264, 270, 435. 

motion for, 269, 437. 
CANDIDATES, 

rival, agreement of, respecting right of certain persons to vote, 200. 
CHAIRMAN, 

origin of the term, 287. 
to what assemblies applied, 287. 
CHAPLAIN, 338. 
CITIZENSHIP, 

a qualification of a member, 61. 
an elector, 34. 
CLERK, 

of house of lords, 320, 330. 
commons, 320. 

appointment of, 321. 
oath of, 321. 

may appoint deputy and other clerks, 322. 
assistant, 323. 
more than one, 324. 
pro tern., 325. 
duties of, 216, 326. 
has custody of papers, etc., 328, 842. 
misentries of, 329. 
may adjourn assembly, 362. 
of legislatures of U. S., 331. 

how appointed, 331. 
tenure of office of, 331, 
oath of, 331. 
bonds of, 331. 
powers and duties of, 334. 
vacancies in office of, 332. 
number of, 333. 
to committees, 334. 

to authenticate copy of order for attendance of 'witnesses, 945. 
of journals and papers, 1022. 
to read petitions, 1120, 1128, 1161. 
to take down disorderly words, 1765, 1768. 
to see bills engrossed, 2213. 
to authenticate biUs, 2293. 
COMMIT, 

motion to, 1387, 1444, 1446. 

may be amended, 1454. 
COMMITTEES, 

how appointed, 237, 291. See Appendix, XIV. 

87 



1034 EODEX. 

C OMMITTEE S — continued. 

power of, to send for persons and papers, 634, 939. 

communications by, 866. 

attendance of witnesses before, 952, 993. -' 

minutes of testimony before, 987. 

reports of, respecting evidence before, 993, 1016, 1021. 

hearing of parties before, 1029. 

proceedings of, when may be introduced in debate, 1729. 

standing, 1856. 

in U. S. house of representatives, 1856. 
select, turned into, 1857. 
open, how differ from committees of the whole, 1858. 
of secrecy, 1859. 
above stairs, 1860. 
previous, 1860. 
of inquiry, 1860. 

of conference between two houses, 2265. 
for standing orders, 2416, 2512. 
of selection, 2417, 2447. 
select, on petitions for private bills, 2415. 
who may be of, 1862, 1877. 
vacancies in, 1863, 1876, 1886. 
number of members of, 1865. 
discharge of " " 1877, 1887, 1910. 
appointment of, 1861. 

time of, 1868. 
manner of, 1870. 
on motion, 1871. 
by ballot, 1880, 1910. 
other modes of, 1890. 
to be notified to members by clerk, 1891, 
by the speaker, 1892, 1910. 
viva voce, 1892, 1910. 
incidental powers of, 1895. 
time of sitting of, 1895. 
adjournment of, without day, 1896, 1934. 
place of meeting of, 1900. 
power of, to send for persons and papers, 1901. 
bound by order of reference, 1905. 
report of, from time to time, 1904. 
" " 1930. 

by whom prepared, 1935, 1937. 

must correspond with authority of, 1936, 1948. 

that a bill be brought in, 1943. 

clerical form of, 1 944. 

special, 1945. 

how made, 1950. 

objections to receiving, 1952. 

motion to read, 1955. 

a second time, 1960. 



I 



INDEX. 1035 

COMJNIITTEE S — continued. 

select report of, proceedings with reference to, 1956. 
debate respecting, 19G2. 
recommitment of, 19G0, 19G3. 
may be dealt with in parts, 1967. 
minority, 19G8. 
grand, 2023. History of, see Appendix, XV. 
of privileges, 2025. 
of supply, 202G, 2031. 

in congress of U. S., 2042. 
of ways and means, 202G. 

in congress of U. S., 2042. 
joint, 2043. 

of both houses in communication with each other, 2044. 
on subject of bills, 2073. 
to prepare and bring in bill, 2091. 
to report by "bill or bills or otherwise," 2091. 
instructions to, 2161. 
on bills, report of, 21*99. 

reading of, 2201. 
clause on, 2202, 2220. 
of the whole, right of speaking in, 1604, 1969. See Appendix, XV. 
appointment of, 1970, 1987. 
sitting of, 1971. 
chairman of, 1975. 
clerk of, 1976. 

proceedings of, recorded, 1977. 
; duties of officers while house Is in, 1981. 

point of order in, 1982. 
order for going into, 1987. 

dropped, 1988, 1991. 
discharged, 1 989. 
postponed, 1990. 
proceeded with, 1991. 
instructions, etc. to, 1992. 
quorum in, 1995. 
authority of, 1996. 

cannot be delegated to sub-committee, 1999. 
motions in, 2000. 

cannot entertain matter of privilege, 2000, 2019. 
take question by yeas and nays, 2000. 
reconsider vote, 2000. 
adjourn, 2004. 
to report progress when, 2005. 

resolutions when, 2006. 
report of, 2011. 

special, 2017. 
how made, 2021. 
origin of, 2023. 
on motion for supply, 2028. 



1036 INDEX. 

COI^IMITTEES — co7itinued. 

of the whole, on the state of the nation, 2041. 

Union, 2042. 
GOMMOIS^S, HOUSE OF, 

choice of speaker by, may be negatived by crown, 700. 

how constituted, 702. 

collective name of, 702. 

negative of, on house of lords, 713. 

grand inquest of the nation, 714. 

powers of members of, 721, 723. 

members of, serve for the whole kingdom, 721. 

pledges given by, before election, 724. 

equality of, 725. 
may be cleared of strangers, 729. 
messages of, to House of Lords, 808. 
when speaker of, may take the chair, 875. 
cannot administer oaths to witnesses, 955. 
order of business in, 1528. 
supplies granted by, 2027. 
address of, in answer to king's speech, 2030. 
right of, to judge of returns, etc. of members, 146. 
assembling and organization of, 215. 
clerk of, duties of, 216. 
members of, to take oaths of abjuration, etc. 217, 226. 

property quahfications of, 227. 

number of, 237. 

oaths of, 366. 

have no pay, 444. 
speaker of, see Speaker. 
address of, in answer to king's speech, 226. 
penalties for sitting in, without being qualified, 227. 
officers of, appointed by crown for life, except speaker, 287, 274, 820. 
call of, 264. 
time of sitting of, 364. 
daily sitting of, how opened, 371. 
message to, 384. 
petitions to, 431. 
salaries in, 444. 
vacancies in, how filled, 453 

created, 466. 
membership in, compulsory, 465. 
COMMUXICATIONS, 

between different branches, 737, 803, 2350r 
with executive, 867. 
CONFEEEXCES, 

between the two branches, 820. 
occasions of, 821, 865. 
message requesting, 824. 
time and place of, 826, 861. 
how conducted, 828, 845. 



INDEX. 1037 

CONFERENCES — continued. 

report of, 834, 836, 845, 851. 

falling through of, 835. 

free, 838. 

bare, 839. 

successive, 847. 

removal of strangers from, 857. 

orders relating to, 858. 

reporters at, 859. 

ceremonies at, 862. 
CONFORMITY, 

occasional, bill for preventing, see Appendix, XVI. 
CONGRESS OF THE UNITED STATES, 

functions of, 9. 

election of members of, 19. 

rules and orders of, 274. 

territorial delegates In, 253, 281. 

functions of, 282. 

proceedings of, public or private, 346, 349. 

confidential communications to, 349. 

passage of bill by, notwithstanding president's veto, 414. 

address or message of executive to, 448. 

vacancies In, 480. 

character of, 480. 

terms of membership in, 501. 

how designated, 502. 

term of service In, commences when, 527. 

powers of, 718. See Senate; House of Representatives. 
CONGRUITY, 

of amendments, 1363. 
CONSENT, 

taking sense of house by, 1793. 
CONSTITUENCIES, 

kinds of, 14, 18. 
CONTEMPT, 

of legislative authority, 655, 671. 
CONTRACTS, 

laws impairing obligation of, 762, 770. 
COSTS, 

In trials of controverted elections, 212. 
CRIMES, 

persons convicted of certain, not entitled to vote, 47, 50. 

conviction of, as a disqualification to membership, 80. 
CROWN OF GREAT BRITAIN, 

may veto acts of parliament, 700. 

functions of, 714. 

messages from, 747, 868. 

a branch of the legislature, 867. 

pleasure of, how signified, 886. 

recommendation of, how signified, 887. 

87* 



1038 En)EX. 

CROWN OF GREAT B^IT AI^ — continued. 

consent of, how given, 888. 
DEAF AND DUMB PERSONS, 

-whether eligible, 60. 
DEBATE, 

right of, 1532. 

"what constitutes, 1533. 

what questions open to, 1532. 

order in, 1533. 

precedence in, 1535. 

rules of order respecting, 1549. 

must be on question proposed or to be proposed, 1557. 

adjournment of, 1383, 1390, 1395, 1518, 1521, 1523, 1590. 

allowed on question until decided, 1610. 

relevancy in, 1637. 

personality in, 1676. 

freedom of, necessarj'-, 1686. 

publication of, 1704. 

any thing said or done in, not to be referred to In subsequent debate during 
same session, 1723. 

when proceedings of committees may be introduced in, 1729. 

irregularity in, 1 735. 

proceedings to prevent, 1746. 

deportment of members not engaged in, 1773. 

of the house, bill brought in on, 2070. 
DEBT, 

bills for, 759. 
DEPARTMENTS OF GOVERNMENT, 

separation of, 1. 
DEPORTMENT, 

of members not engaged in debate, 1773. 
DEPOSITIONS, 

in cases of controverted elections, 211. 
DISORDERLY WORDS, 

complaint for, when and how made, 1765. 

to be taken down by clerk, 1768. 

action of house upon, 1768. 
DISQUALIFICATIONS, 

to vote, 25, 47. 

to be elected, 56, 76. 

of candidate, eifect of notice of, to electoi-s, 177, 179, 
DISSOLUTION, 447, 503, 516, 525. 
DmSIBILITY, 1342. See Appendix, XIL 
DIVISION, 

taking sense of house by, 1613, 1798. 

right of member to demand, 1798. 

if called for, must go on, 1799. 

point of order arising during, 1809. 

speaker to direct proceedings on, 1801. 

member taking wrong" side on, 1813. 



INDEX. 1039 

DIVISION— con^mwed 

notice given of, in house of commons, by beU, 1815. 
DIVORCE, 

bills of, proceedings with reference to, 2518. 
DOCUMENTS, 

distribution of, 432. See Papers. 
DOMICIL. See Residence. 
DOORKEEPERS, 

to congress, 336. 
DRUNKENNESS, 

disqualifies from voting, 27. 
DUELLING, 

as a disqualification to membership, 80. 

ELECTION. 

making and determining of, 1 6. 

method of conducting, 17, 85, 94, 233. 

freedom and purity of, how secured, 23. 

where may be held, 40. 

new, 92, 137. 

of several at the same time, 93. 

void, 93, 125, 181, 197. 

cannot be made valid, 206. 
if conditional, 208. 
controverted, 96, 142, 192, 198, 199, 229, 231, 236, 475, 657, 1057, 1139. 

rules of evidence in cases of, 210. 

costs in trials of, 2 1 2. 

pay of contestants, 212. 

petition in cases of, 213, 1139, 1141. 

remarks in debate tending to prejudice members respecting, 
irregular, 1735. 
how defeated, 114. 
result of, how determined, 115, 120. 
number necessary to, 119, 121. 
where conducted on plurality principle, 126, 128, 134. 

majority " 128. 

writs of, 132, 135, 193, 447, 451, 454, 457. Appendix, IL 
regulated in this country by constitution and laws, 135. 
authentication of. 136, 143, 233. 
renunciation of, 137. 

validity of, when may be inquired into, 152, 556. 
committee on, in House of Commons, 153, 158. 
GrenviUe act concerning, 154. 
Sir R. Peel's act " 157. 

committees on, in this country, 164. 
of unqualified persons, 1 75. 
freedom of, 181, 197, 232, 234. 
how aifected by riots, 182. 

bribery, 186. 
wager on event of, 188. 



1040 INDEX. 

ELECTION — continued. 

as affected by qualifications and conduct of returning officers, 193. 

held by improper officers, 193. 

when set aside on account of illegal votes, 198. 

irregularities not sufficient to invalidate, 203. 

once made, not revocable, 205. 

in representative governments, must be regulated by law, 233. 

of members, legislature sole judges of, 1050. 
ELECTORS, 

wbo may be, 22. 

privileged from arrest, etc., 23. 

casual absence or removal of, 39. 

qualifications of, referable to what time, 67. 

lists or registers of, 87, 89. 

notice of meetings of, 87. 

may vote for whom, 89. 

remedy of, if unlawfully prevented from voting, 90, 139, 648. 

equality of, 91, 114. 

can give but one vote at same election, 91. 

notice to, of disqualification of candidate, 177, 179. 

evidence admissible of general reputation of political character of, 199. 

right of, exhausted by election, 205. 

void proceedings of, cannot be rendered valid, 206. 

division of, into constituencies, 233. 

control of, over persons elected, 723. 
ELIGIBILITY, 

conditions of, 55. 

not affected by temporary inability to perform functions of member, 83. 
EMPLOYMENTS, 

which disqualify from membership, 77. 
EVIDENCE, 

rules of, in cases of controverted elections, 210. 

on which parliamentary proceedings are founded, 741. 

nature of, 742. 
rules of, 743, 968. 

of common fame, 745. 

statements of members, 746. 

other sources of, 747. 

sent by one branch to the other, 748. 

before parliament, not to be used elsewhere, 1001. 
EXECUTIVE DEPARTMENT, 

connection with, as affecting eligibility, 77. 

termination of office in, 241. 

functions of. In connection with legislature, 446. 

head of government, 446. 

message of, 448, 747, 876, 881, 896. 

veto of, 450. 

convenient access to, 508. 

power of, over legislature, 516.^ 
to convene " 520. 



INDEX, • 1041 



EXECUTIVE DEPARTMENT— con^mwerf. 

communications by, 632. 

right of head of, to call on officers of, for information, 632. 

in U. S. when present in legislature, 876. 
EXPLAIN, 

right to, 1594. 

limitation of, 1596. 
EX POST FACTO LAWS, 762, 769. 
EXPULSION, 

as disqualifying from membership, 82. 

causes of, 84. 

as a punishment, 192. 

FACT, 

statement of, right to make, 1694, 1602, 1655. 
FAME, COMMON, 

evidence of, 745. 
FELONY, 

effect of conviction of, on right of suffrage, 52. 
FINE, 

right to impose, 676. 
FLOOR, 

who entitled to, 1532. 

may be temporarily yielded, 1547. 
FRANKING, 

privilege of, 432, 605. 
FRAUD, 

effect of, on ballot, 106. 

in obtaining return, 172. 
FREEDOM, 

a qualification of an elector, 35. 
FREEDOM OF SPEECH, 

to be enjoyed by members, 601. See Appendix, 

GOVERNMENT, 

original elements of, 232. 
three departments of, 703, 768. 
GUARDIANSHIP, 

persons under, not entitled to vote, 47, 54. 

HABEAS CORPUS, 

writ of, must be obeyed by member, 565. 
to discharge member under arrest, 587, 593. 
HEARING OF PARTIES, 

how prayed for and ordered, 1027, 1046. 
with and without counsel, 1027, 1032. 
to what restricted, 1029, 1033. 
before committees, 1029. 
time and manner of, 1031. 
on bills, 1031. 



1042 • IXDEX. 

HEARDsG OF Y ARTIES — confinued. 

deportment of parties heard, 1033. 

classes of, 1034, 1042. 

on rights of membership, 1035. 

on punishment of offences, 1036. 

on inquiries respecting public officers, 1037. 

on bills of attainder, etc., 1038. 

on private bills, 1039, 2427, 2461. 

on public bills and measures, 1041. 

grounds of allowing, 1042. 
HOLY^ ORDERS, 

ineligibility of persons in, 59. 
HOUSE, 

meaning of, in determining what members are in, 1 795. 
See Commons ; Lords ; Representatives. 

IDIOTS a:xd lunatics, 

not allowed to vote, 24, 27. 
eligible to office, 56, 60. 
IMPEACHMENT, 

trial of, by House of Lords, 330. 

preliminary inquiries respecting, 1037. 

definition of, 2535. 

first instance of, 2536. 

purpose of, 2539. 

how conducted, 2541. 

one convicted on, may be pardoned by crown, 2553. 
" " " cannot " " president, 2570, 

in this country, 2554. 

practice of congress respecting, 2563. 
IMPRISONMENT, 

for debt, does not render inehgible, 83. 

misconduct of returning officers punishable by, 139. 

members exempt from, 561. 

imposed by legislature, 677, 690. 
INDIANS, 

not entitled to vote, 47, 54. 
INFANTS. See Minors. 
INSTRUCTION, RIGHT OF, 726. 

how exercised, 728. 
INTEREST, 

as disqualifj'ing from voting, 1846. 

JOURNAL, 327, 415, 642. 
mistakes in, 329. 
by whom kept, 418. 
reading of, 419. 
correction of, 419. 
form and manner of keeping, 422. 
publication of, 423. 



INDEX. 1043 

JOURNAL — continued. 

expunging of entry in, 424. 

competency of, as evidence, 425. 

contents of, how proved, 427. 

search of, for precedents, 781. 

of congress, 421. 
JUDGES, 

opinions of, may be required, 633. 

by House of Lords, 1065. 
JUDICIAL DEPARTMENT, 

connection with, as affecting eligibility, 77, 79. 

termination of office in, 241. 
JURORS, 

members exempt from serving as, 598. 

'legislative assemblies, 

judges of the election of members, 141, 147, 149, 164, 556, 612, 651, 657. 

right of, to set aside election, 192. 

nature of, 210. 

constitution of, 214. 

assembling, qualifying, and organizing of, 215. 

delay and inability of, to organize, 238. 

organization of, 215, 271, 275. 

temporary, 242, 262. 

permanent, 243. 

notice of, given to executive, 277, 314. 

by one branch to the other, 277, 314. 
call of, 264, 270, 435. 

motion for, 269, 437.' 
when may proceed to business, 278. 
place and manner of sitting, 342. 
meetings of, must be held where, 343. 
inviolability of, 343. 
may exclude strangers, 343, 388, 623. 
proceedings of, private or public, 344, 348, 351, 623. 
cannot change their original constitution, 346. 
legislative days of, 356. 

certain business of, assigned for certain day, 358. 
clock of, 359. 

session o^, prolonged into second days, 360. 
hour of meeting of, 367. 
manner of speaking in, 374. 
rule of decision in, 412. 
recess of, 446, 515. 

have no authority except during session, 496. 
convenient access of, to executive, 508. 
may sit on what days, 509. 
assembling of, by proclamation, 520. 
change of place of meeting of, 520. 
privileges and incidental powers of, 529, 640. 



1044 INDEX, 

LEGISLATIVE ASSEMBLIES — continued. 

functions of, 696. 

■when may be exercised, 529. 
suspended, 315. 
collective privileges of, 608. 
consequences of breach of privilege of, 608. 
right of, to call on other departments for information, 631. 
to require opinions of judges, 633. 
investigation by, 634, 641. 
protection of, extended to persons summoned to appear before, 636, 608. 
proceedings of, cannot be interfered with, 639. 
judicial powers of, 642. 

jurisdiction of, as judicial tribunal, original, 646. 

exclusive, 647. 
final, 649. 
civil, 651, 657. 
criminal, 652, 664. 
of contempt, 655, 671. 
may punish misconduct of persons not members, 667. 
judgments of, how enforced, 673. 
power of to inflict fine, 676. 

imprisonment, 677, 690. 
reprimand, 682. 
two fundamental forms of, 720. 
powers of members of, individually, 720. 

enforcement of orders of, may be required by every member, 729. 
hamiony between branches of, 732. 

offences against one Dranch of, by members or officers of the other, 733. 
transmission of evidence by one branch of, to the other, 735, 749. 
knowledge of doings of one branch, how obtained by the other, 736. 
interference of one branch in proceedings of the others, 737. 
forms of, 751, 773, 795. 
communications of, 803. 

equality and independence of branches of, 1701. 
reflections on, by member, disorderly, 1737. 

proceedings of, by member, disorderly, 1740. 
questioning powers of, by member, disorderly, 1 740. 
of United States, existence and powers of, 6. 

how convened and dissolved, 7, 86, 135. 

kinds of, 9. 

who cannot be members of, 56, 77. 

requisites to membership of, 57. 

vacancy in, how filled, 135. 

modelled after British parliament, 215, 697. 

preliminarj'' proceedings in, 228. 

daily sitting of, how opened, 371. 

times of holding, and periods of, 448. 

membership in, voluntary, 468. 

refusal to accept, 471. 
establish fheir own rules of proceeding, 498. 



INDEX. 1045 

LEGISLATIVE ASSEMBLIES — continued. 

names, terms, and meetingjs of, 500. 

how designated, 502. 

incidental powers of, as affected by constitutional and legal provisions, 684, 

may punish misconduct of members and others, 685, 690. 
LEGISLATIVE DEPARTMENT, 2. 

branches of, 3. 

functions of, 4, 8. 

suspension of, 241. 

expires when, 241. 

sovereignty of, 704. 

powers of, in U. S., constitutional limitation on, 715. 
LETTERS, 

reading from, in debate, 1668. 
LIBEL, 

publication of, by legislature, 433. 

cannot be published by member, 604. 

on legislature, 609, 629. 
LIE ON THE TABLE, 

motion to, 1444, 1449. 

cannot be amended, 1523. 

made in committee of the whole, 2000. 
LIEUTENANT-GOVERNOR, 

where president of one branch, 298. 
LORD CHANCELLOR, 

presiding officer in house of lords, 227, 285. 

functions of, 288, 302. 
LORDS, HOUSE OF, 

how constituted, 701. 

negative of, on house of commons, 713. 

a court of error and appeals, 714, 751. 

may be cleared of strangers, 729. 

attendance of judges on, 760. 

messages of, to house of commons, 806. 

may administer oaths to witnesses, 955. 

right of, to call for opinions of judges, 1065. 

members of, may vote by proxy, 401, 434, 1818. 
protest against vote, 1820. 

supplies assented to by, 2027. 

officers of, appointed by crown for life, 227. 

lord chancellor, presiding officer in, 227. 

no casting vote in, 288, 302. 

not a representative body, 302. 

judicial functions of, 330. 

MACE, 354. 
MAJORITY, 

age of, 25. 

vote of, decisive, 115, 412. 

meaning of, 117, 119. 

88 



1046 INDEX. 

UAJOmTY — continued. 

principle of, on'gin and introduction of, 126. See Appendix, IV. 

principle of, does not prevail in England, 126. 
■when equivalent to plurality, 131. 
requisite to' elect presiding officer, 298. 
question usually decided by, 1825. 
more than, when necessary, 1826. 
MEMBERS, 

already returned, no longer eligible, 63. 

qualifications of, 55, 276, 470. 

election and return of, 87. 

exclusion of, 142. 

too many, elected, 169. 

wrong name of, in return, 170. 

expulsion of, 192, 280, 434, 474, 621, 625, 683. 

under restraint or suspension, 280, 474, 621, 625, 683. 

rights of, in first instance, determined by return, 229, 231. 

who may act as, 230, 233, 240. 

oath of, 243. 

absent, attendance of, how compelled, 256, 264, 435, 621. 

obligation of, to attend, 267. 

equality of, 279, 413. 

exceptions to, 730. 
seats of, 352. 

in parliament, 352. 

how assigned in U. S., 353. 
pay of, 356, 434, 615. 
personal deportment of, 372, 397, 399. 
names of, not used, 381, 16 71. 
what, may vote on any question, 393. 
" pairing oif " of, 443. 
refusal to qualify as, 472. 
resignation of, 473, 487. 
death of, 476. 
disqualification of, 477. 

acceptance by, of disqualifying or incompatible offices, 4 78. 
personal pri\'ileges of, 530, 546, 580. 
exempt from legal process, 549, 559, 566, 578, 615. 

serving as jurors or witnesses, 598. 
who are, 552. 

official character of, all persons bound to take notice of, 554, 576, 590. 
how discharged from arrest, 585. 
to enjoy freedom of speech, 601. 
personal disabilities of, 606. 
assault on, 609, 628. 
misconduct of, 653, 666, 685. 
freedom of, in going and returning, 1064. 
petitions charging or implicating, 1142. 
new, preference of, in debate, 1542. 
rights of, to floor, 1544. 



INDEX. 



1047 



I 



MEMBERS — continued. 

to speak from their places, 1550, 2002. 

to rise and stand uncovered, 1551, 2002. 

speech of, to whom addressed, 1552, 2002. 
not to be written, 1553. 

questions or appeals to, in debate, 1676. 

personal attack on, in debate, 1674. 

censure or punishment of, for disorderly conduct, 1696. 

respect due from, to house, the laws, etc., 1736. 

use of indecent language by, disorderly, 1738. 

reproaches on existing government by, disoi'derly, 1742. 

disrespectful language by, respecting acts disorderly, 1743. 

presumed to be in order, 1758. 

to keep their places during a debate, 1774. 

while tellers are counting, 1807. 

to preserve silence " " " '' 1781,1807. 

during a debate, 1780. 

duty of, on entering house, 1776. 
crossing " 1778. 

reading of books, etc., by, 1779. 

personally interested In question, hearing and withdrawal of, 1784, 1791. 

may be commanded to withdraw, 1788. 

when may speak sitting, 1811. 
MEMBERSHIP, 

rights of, 1035. 

called in question, 145, 148, 165, 233, 240. 
tribunal for trial of, 146, 240. 
how aflCected by return, 167. 

compulsory In House of Commons, 465. 

arrest on civil process no disqualification to, 596. 

evidence of, 597, 1050. 
MEMORIAL, 

definition of, 1077. 
MESSAGES, 

from executive, 448, 506, 747, 868, 877, 881, 896. 

from one branch to the other, 805. 

quorum necessary to, 817. 

mistakes in, 818. 

by whom sent, 806, 819. 

written, 877. 

verbal, 877, 883. 

documents accompanying, 881. 

address in answer to, 802. 

to introduce subject of bill, 2064. 

declining to furnish certain papers, see Appendix, XI. 
MILITARY, NAVAL, OR MARINE SERVICE, 

persons in, not "residents," 37. 

entitled to vote, 47, 54. 
MILITARY DUTY, 

performance of, a qualification of an elector, 46. 



1048 IOT)EX. 

MIXESTERS, 

inquiries addressed to, 750, 1564, 1571. 

See Holy Orders. 
MINORS, 

not allowed to vote, 24. 
eligible to office, 56, 58. 
MODERATOR, 

when used as designation of presiding officer, 287. 
MORAL CHARACTER, 

a qualification of an elector, 46. 
MOTIONS. 

definition of, 797. 

nature of, and practice respecting, 1175, 1202. 

necessary to putting of question, 1184, 1229, 12G3. 

stated by speaker, 291, 1185, 1231, 1234, 1563. 

question of consideration of, 1186. 

notice of, 911, 1187. 

how and when given, 1190. 

abuse of, 1196. 

object of, 1197. 

dropped, 1206. ) 

when required, 1210. 
withdrawal of, 1198, 1203, 1231, 1236, 1241, 1247, 1477. 
on same subject, by different members, 1199. 
bringing forward of, 1200. 
variation of, from notice, 1205. 
time of making, 1207, 1291. 
when and how made, 1211. 

made or seconded by two or more members at the same time, 1216, 1228. 
irregularly made, 1219. 
ancient practice respecting, 1223, 1557. 
when must be seconded, 1224, 1230, 1914. 
how seconded, 1225. 
priority of, 1227. 
objectionable, 1231, 1250. 

neither mover nor seconder need vote for, 1229. 
power of mover over, 1233, 1235, 1239. 
when cannot be modified, 1244. 
inspection of, by members, 1249. 
in contravention of an act, 1251. 

a standing order, 1252. 
a special order, 1253. 
once disposed of, cannot be renewed, 312, 1254, 1299. 
to reconsider, 1264. 
form of, 1279. 

usually expressed in the affirmative, 1280. 
must regularly be in writing, 1283. 
only one can be made at same time, 1284. 
length, etc. of, 1287. 



INDEX. 1049 

MOTIONS — continued. 

to be put in very words of mover, 1290. 

when one must be decided before another is put, 1291, 1296, 1441, 1452. 

to amend, 1302, 1444, 1521. 

division of, 1342. See Appendix, XII. 

to postpone, 1370, 1444, 1521. 

to adjourn the debate, 1383, 1395. 

to commit, 1387, 1444, 1521. 

to suppress, 1389. 

to adjourn, 1390, 1518, 1521. 

for previous question, 1404, 1444, 1521. 

to lie on the table, 1444, 1521. 

subsidiary or secondary, 1443. 

incidental, 1456. 

for reading papers, 1472. 

to suspend the rules, 1478. 

connected with general course of business, 1517. 

precedence of, 1517, 1521. 

what, cannot be applied to one another, 1524. 

to be made at beginning or conclusion of speech, 1557. 

may be seconded by a speech, 1560. 

rule respecting, in U. S. house of representatives, 1562. 

when open for debate, 1563. 

making or seconding of, equivalent to speaking, 1585. 

when become questions, 1586. 

right to speak to more than one, on same subject, 1653. 

by chairman of committee, 1947. 

respecting committee's report, 1955. 

in committee of the whole, need not be seconded, 2000. 
what cannot be made, 2000. 
formal, 2004. 

to introduce subject of bill, 2068. 

for leave to bring in bill, 2077, 2082. 

notice of, 2084. 
proceedings on, 2084. 
MOVER, 

of a proposition, right of, to speak first, 1536. 
MULATTOES, 

not entitled to vote, 53. 

NATURALIZATION, 

regulated by congress, 34. 
NEGROES, 

not entitled to vote, 47, 53. 
NEWSPAPERS, 

reading from, by member in debate, irregular, 1662. 
in his place, 1779. 

OATH, 

taking of, a qualification of an elector, 46. 

88* 



1050 _ IXDEX. 

OATH — continued. 

of abjuration, etc., taken by members of House of Commons, 217, 226, 366. 

refusal of member to take, 46 7, 469. 

taken by witnesses in House of Lords, 9.55. 

not " " " " " " Commons, 955. 

administered to witnesses before legislatures in U. S., 958. 
OFFENCES, 

against legislature or members, punishment of, 1036. 

prosecutions of, directed by legislature, 1052. 
OFFICES, 

Avbat, render ineligible, 77. 

when to be designated on ballot, 105. 

disqualifpng for, or incompatible with membership, 478. 
OFFICERS, 

choice of, 275, 283. 

term of office of, 283, 296. 

how removed, 283. 

exempt from legal process, 549, 559, 566, 578, 615. 
ORAL SUFFRAGE^ 

how conducted, 94. 

prevails where, 177. 
ORDER, 

enforced, and questions of, decided by presiding officer, 291. 

questions of, 1457. See Appeal. 

violations of, 1534, 1746. 

point of, rules of speaking to, 1621. 

speaker's opinion on, 1694, 1697, 1751. 
may be referred by speaker to house, 1754. 
arising during di-vision, 1809, 1846. 

in committee of the whole, 2191. 

member called to, 1639. 

right of any member to caU to, 1749, 1759. 

member presumed to be in, 1758. 
ORDERS, 248, 613. 

suspension of, 729, 1478, 1492. 

as a source of parliamentary practice, 784. 

standing, 785, 792, 1156. 

committee for, 2416, 2512. 

not in use in this country, 274, 498, 613. 

of parliament, 248, 497, 613. 

sessional, 786. 

occasional, 787. 

definition of, 798. 

kinds of, 801. 

for accounts, papers, etc., 908. 

with reference to witnesses, 937. 

publication and distribution of, 1061. 

of the day, practice concerning, 1201. 
what are, 13 73, 1398, 1507. 
motion to proceed with, 1377, 1399, 1508. 



INDEX. 1051 

ORDERS — continued. 

of the day, dropped, 1384. 
special, in congress, 1512. 

PAINS AND PENALTIES, 

bills of, 759, 1038, 1060. 
PAPERS, 

ordered by parliament, 914. 
congress, 928. 

address to crown for, 915. 

how presented, 919. 

■when production of, Avill be ordered, 920, 

■witnesses may be required to produce, 936. 

power of committees to send for, 939. 

custody of, 1022. 

reading of, 1472. 
PARDON, 

as restoring right of suffrage, 50. 

removing ineligibility, 81. Of persons impeached, see Impeachment. 
PARLIAMENT OF GREAT BRITAIN. 

constitution of, 5, 699. 

existence and powers of, 6. 

dissolution, adjournment, and prorogation of, 7, 447, 503, 516, 525, 870. 
premature, 241. 

ho^w convened, 7, 85, 447. 

length of, 85, 447, 525, 700. 

members of, how elected, 95, 126, 132, 134. 

struggles between lords and commons, 146. 

legislatures of U. S. modelled after, 215, 302, 697, 777. 

time and place of holding, how fixed, 216. 

causes of summoning, declared by sovereign, 219, 226. 

exclusion of strangers from, 345. 

new buildings for, 352. 

manner of speaking in, 374. 

names of members of, voting, not recorded, 402. 

two houses of, courts of record, 425. 

effect of demise of crown on, 447. 

speech of sovereign on opening, 447. 

message to, by sovereign, 447, 877. 

how designated, 499. 

acts of, how legally described, 499. 

privileges and powers of, 534. 

privilege of, extended to persons summoned before, 636. 

judicial powers of, 642. 

power of, to impose fine, 676. 
imprison, 677. 

functions of crown relative to, 700. 

how often assembled, 700. 

supplies provided by, 700. , 

omnipotence of, 705, 715. 



1052 INDEX. 

PARLIAISIENT OF GREAT BBIT Am — continued. 
negative of each branch of, on the others, 707, 731. 

how exercised, 713. 
questions by members of, to ministers, 750. 
criminal jurisdiction of, 760. 
forms of proceeding in, 777. 
standing orders of, 785. 
opening of, 870. 

authority of, to obtain information, 908. 
returns of official persons to, 908. 
preservation of peace in the place where it is sitting, 1063. 

parlia:\ientary law, 

definition of, 11. 
PAUPERS, 

not entitled to vote, 38, 47. 

who are, 48. 
PEACE, 

preservation of, in place where parliament is sitting, 1068. 
PERSONAL EXPLANATION, 

member may make, 1565. 
PERSONALITY, 

in debate, disorderly, 1676. 

speaker's duty to prevent, 1690. 
PETITIONS, 

to contest right of membership, 150; 156, 158, 213. 

object of, 1068. 

definition of, 1069. 

private, 1070, 1079, 1083, 1148. 

public, 1070, 1074, 1083. 

joint and several, 1071. 

right of, 1072, 1079, 1110, 1150. 
in U. S., 1073. 

effect of, 1075. * 

when and how to be received, 1076. 

kinds of, 1077. 

objectionable forms of, 1077, 1089. 

frivolous, malicious, etc., 1078. 

may come from whom, 1079. 

ancient practice respecting, 1081, 1156. 

receivers and triers of, 1081. 

later practice respecting, 1082, 1150. 

on what and how written, 1085. 

not printed, in House of Commons, 1086 

may be printed, in House of Lords, 1086 

may be printed, in U. S., 1086. 

alterations of, 1087, 1093, 1115. 

several parts of, 1088. 

signing of, 1092. 

forged, 1096. 

not dated, 1098. 



INDEX. 1053 

PETITIONS — con/inM^rf. ui 

annexation of documents to, 1099. 

evidence of genuineness of, 1100. 

language of, 1101. 

construction of, 1102. 

when rejected, 1102, 1106, 1127. 

legislature must have jurisdiction of matter of, 1106. 

prayer essential to, 1107. 

how and by whom presented, and read, 1100, 1109, 1130, 1133, 1137, 1150, 

duty to receive, 1110. 

committees on, 1111, 1155, 1164, 1171. 
reports of, 1173. 

duties of members intrusted with, 1112, 1114, 1125, 1137, 1160. 

motion to receive, 1121, 1125, 1135, 1143. 

withdrawal of, 1122, 1137, 1140. 

motion to read, 1128, 1135, 1137. 

how many may be presented at once, 1136. 

election, 1139. 

relating to election case, 1141. 

charging or implicating members, 1142. 

for relief out of public money, 1143. 

against tax bills, 1146. 

for leave to present petition, 1148. 

motion to print, 1162. 

not, in themselves, introductory to legislative measures, 1165. 

rules respecting, in U. S. house of representatives, 1167. 

proceedings on, after reading, 1168. 

hearing on, 1169. 

to introduce subject of bill, 2063. 
PLURALITY, 

principle of, 117, 126. 

when equivalent to majority, 131. 

elections where conducted on principle of, 126, 128, 134, 177. 
POLL, 

demand and taking of, 96. 

amending of, 98. 

close of, 100, 197. 

time of opening, not specified In warrant, 203. 

not kept open lawful time, 203. 
POLL BOOK, 94, 99, 120. 
POSTMASTER, 

to U. S. house of representatives, 336. 
POSTPONE, 

motion to, 1370, 1444, 1447. 

effect of, In this country, 1385. 

may be amended, 1454, 1523. 

cannot be made In committee of the whole, 2000. 

order to, effect of, 1374. 

discharge and renewal of, 1376. 

indefinitely, motion to, 1385. 



1054 INDEX. 

POSTPONE — con^mwec?. 

indefinitely, motion to, cannot be amended, 1523. 

made in committee of the whole, 2000. 
PRACTICE, 

som-ces of, 777, 791. 
PRECEDENTS, 

as determining practice, 780. 
value of, 783. 
PRESIDENT OF THE UNITED STATES, 

request to, by congress, for information, 929. 
PRESIDING OFFICER, 

not always a member, 271, 285. 

functions of, 288, 290, 292, 302, 310, 314, 318. 

■warrants of, 290, 316. 

represents assembly, 294. 

a single person, 295. 

permanent, 296. 

temporary, 298, 308, 312. 

bow chosen, 297. 

removable, 297, 299. 

cannot act as member, 297, 300, 31 L'. 

exceptions, 301. 
casting vote of, 298, 301. 
death of, 313. 
absence of, 315. 
resolution of thanks to, 317. 
qualities of, 318. 
to preserve order, 373. 
PREVIOUS QUESTION, 
form of, 1280. 

motion for, 1404, 1444, 1448. 
form of, 1407. 
purpose of, 1409. 
when cannot be put, 1414. 
effect of, 1418, 1526. 
cannot be amended, 1455, 1523. 
as used in U. S., 1421. 
PRINTING, 430. 
PRINTER, 340. 
PRISONERS, 

not entitled to vote, 38. 
PRIVILEGE, 

nature of, 1032. 
breaches of, 1056. 
questions of, 1499. 

supersede others, 1499, 1505. 
what are, 1503. 

cannot be entertained by committee of the whole, 2000. 
committee of, 2000. 



INDEX. 1 055 



PRIVILEGED QUESTIONS, 

what are, 1507. 

precedence of, 1514. 
PROPERTY, 

as a qualification of an elector, 44, 75. 
a member, 61, 75. 
PROROGATION, 447, 503, 516, 525. 

effect of, 917. 
PROSECUTIONS, 

directed by legislature, 1052. 
PROTEST, 

of members, 410. 

how differs from petition, 1077. 

allowed in House of Lords, 410, 1820. 
PROXY, 

vote may be by, in House of Lords, 1818. 
PUBLIC OFFICERS, 

inquiries respecting conduct of, 1037. 

right to call on, for information, 1048. 
refer matters to, 1066. 

QUALIFICATIONS, 

of electors, 22, 67, 74. 
members, 55. 
QUESTION, 

forms of taking, 382. 

always founded on motion, 1184. 

of consideration, 1186. 

incidental, 1456. 

by one member to another, 1572, 1576. 

for information by member, to be put respectfully, 1578. 

when must be answered, 1575. 

to speaker, 1579. 

how may arise, 1586. 

right of every member to express opinion upon, 1586. 

subsidiary, etc., 1587. 

main, suspension and revival of, 1587, 1623. 

new, right of members to speak to, 1589. 

technical sense of, 1591. 

new and different, on each stage of bill, 1591. 

how long open to debate, 1610. 

taken by consent, 1611, 1793. 

voices, 1612, 1614, 1794 

a division of the house, 1613, 1798. 

show of hands, 1821. 

different modes of taking, 1792, 1817. 

to what, members must speak, 1619, 1623. 

on point of order, 1621. 

mistaking, 1622. 

secondar}', wliich involves main, 1624. 



1056 INDEX. 

QJIESTIO^ — continued. 

main, merits of, when open to discussion on secondary, 1632. 
manner of speaking to, 1634. 

to be stated to members not in the house -when it -was put, 1803. 
how decided, 1826. 
equivalent, 1830. 

to be first taken on least sum and longest time, 2003, 2184. 
framed by speaker, formerly, 2130. 

once decided, cannot be renewed at same session, 2135, 2305. 
QUORUM, 

when necessary to organization, 245. 

adjournment, 361. 

transaction of business, 369. 

a call, 439, 
necessary to receiving and sending a message, 817. 

petitions in House of Commons, 1154. 
origin of term, 247, 
how many constitute, 247, 261. 

presence or absence of, how and by whom determined, 253, 260. 
presiding officer, when counted to make, 309, 369. 
when presumed, 369. 
as aifecting decision of question, 370. 
in committee of the whole, 1995. 

RECEIVING OR RETURNING OFFICERS, 

ministerial and judicial acts of, 16, 87, 140. 

casting vote of, 92, 118. 

misconduct or neglect of, 138. 

proceedings of, control over, 141. 
when void, 195.. 

two opposing sets of, 168, 

mistakes of, 1 70. 

frauds of, 172. 

qualifications and conduct of, as affecting elections, 193. 

presumed to be legally appointed, 194. 

duties of, prescribed by law, 201. 

instances of irregular conduct of, 203. 

to return person really elected, though not declared to be so, 207, 209. 

control of legislature over, 1049. 
RECONSIDERATION, 

motion for, 1264. 
REGULARITY, 

of proceeding, rules relating to, 1 723. 
REMONSTRANCE, 

definition of, 1077. 
REMOVAL, 

as affecting right to vote, 39. 
REPLY, 

privilege of, 1594, 1605. 

to whom conceded, 1605. 



INDEX. . 1057 

REPLY — continued. 

privilege of, only exercised once, 1606. 
limitation of, 1607. 
REPRESENTATIVE GOVERNMENT, 
fundamental idea of, 14. 
distinguishing characteristics of, 232. 
requisites to existence of, 232, 235. 
free, equality of representation requisite to, 233, 235. 
REPRESENTATIVES, 

iu congress, qualifications of, prescribed by constitution of U. S., 65, 77. 

cannot be altered by congress or the States, 65. 
house of, analogy of, to House of Commons, 274. 
organization of, 274. 
officers of, 274. 

daily sitting of, how opened, 371. 
division of, in voting, 404. 
order of business in, 1529. 
requisitions of, for papers, returns, etc., 928. 
house of, in Massachusetts, how organized, 242. 
REPRIMAND, 682. 
RESIDENCE, 

a qualification of an elector, 36. 

acquisition of, not affected by other disqualifications, 43. 
as a qualification of a member, 61. 
not affected by temporary absence, 73. 
RESOLUTIONS, 

as a source of parliamentary rules, 779. 
definition of, 798. 
kinds of, 801. 

presented to executive, 905, 907. 
reported by committee, 1938, 1957, 2011. 
as a form of legislation, 2403. 
RESOLVE, 

nature of, 752. 
RETROSPECTIVE LAWS, 771. 
RETURN, 101, 132. 
meaning of, 16. 

of writs of election, 132. See Appendix, V. 
indentures of, 133, 555. 
special, or double, 134, 236. 
purpose of, 136, 235. 
controverted, 142. 
imperfect, 151. 
to whom made, 151. 

given or sent, 230. 
validity of, when may be examined, 152. 

If made on only part of votes I'ecelved, 1 73. 
amendment of, 151, 166, 170. 
as affecting right of membership, 16 7. 
determining rights of members, 229. 

89 



1053 ^ INDEX. 

RETURN — continued. 

good in substance, not to be set aside, 168. 

void, if repugnant, 169. 

when may be set aside, 171. 

conditional, 174. 

irregular, instances of, 203. 

examination of, and decision upon, 230, 260. 

from public officers, etc., as evidence, 747. 

of official persons to parliament, 908, 1048. 

motions for, 911. 

to congress, 928. 

e'v'idence of membersMp, 1050. 
RIGHT OF SUFFRAGE, 

how regulated, 22. 

who excluded from exercising, 24, 47. 

constitutional requisites to, 33. 

how affected by removal, 39. 

exercise of, 89. 

nature of, 114. 

not aifected by agreement of rival candidates, 200. 
RIOTS, 

as affecting return, 1 72. 
election, 182. 

protection of parliament against, 1063. 
RULES, 

and orders, 248, 613. 

of external proceeding, 773, 791. 
internal " 774, 791. 

necessity of, 776, 794. 

sources of, 777, 791. 

suspension of, 794, 1478, 1564. 

great purpose of, 25 70. 

SENATE, 

in certain States, number of members in, 244. 
how elected, 244. 
vacancies in, how filled, 244. 
of U. S., how composed, 20, 272, 489, 501, 
chosen, 272. 
vacancies in, 272. 
organization of, 272. 
expires by classes, 272. 
officers of, 272, 289, 298, 334. 
analogy of, to House of Lords, 272,274. 
an executive council, 278, 624. 
rules and orders of, 785. 
requisitions by, for papers, returns, etc., 928. 
continuitj' and permanence of. Appendix, I. 
SENATORS, 

choice of by legislature, in Massachusetts and Maine, 176. 



INDEX. 1059 

SERGE ANT-AT-ARMS, 335. 
duties of, 336, 10G2. 
officers appointed by, 336. 
actions against, 33 7. 
vacancies in office of, 337. 
rooms of, 342. 
to summon witnesses, 945. 
witnesses in custody of, 946, 948. 
SESSION, 

what constitutes, 495, 503, 507, 584. 
termination of, 495, 503. 
SETTLEMENT, 

a qualification of an elector, 46. 
SICKNESS, 

as affecting eligibility, 83. 
SOLICITOR-GENERAL, 

parliament may require services of, 1052. 
SOVEREIGN, 

introduction of name of, in debate, to influence proceedings, iri'egular, 1715, 

1721. 
legislative power of, 1716. 
SPEAKER, 

appointment of committees by, 237. 

origin of term, 285. 

decision of, questioned, 387, 1460, 1464, 1752, 1822. 

when to decide peremptorily, .397, 1809. 

to put questions to witnesses, 962. 

questions to, 1564, 15 79. 

to preserve order, 1747, 1765. 

to explain grounds of opinion, 1753. 

when to vote, 1806, 1882. 

to direct proceedings on a division, 1801. 

questions framed by, formerly, 2130. 

of house of commons, election of, 2 1 9. 

to be approved by sovereign, 219, 222, 224. 

prayer of, to sovei-elgn, 225. 

salary of, 444. 

and in U. S., difference between, 237, 286. 

prayer of, see Appendix, VU. 

always a member, 285, 302. 

functions of, 288, 290, 302. 

term of office of, 296. 

none pro tern., 313. 

cannot present petitions, 1132. 
in U. S., may present petitions, 1133. 
SPEAKING, 

personal deportment of members in, 1549. 
what is understood by, 1583. 
moving or seconding equivalent to, 1585. 
rules respecting, 1582. 



1060 INDEX. 

SPE AKI:N^G — contin ued. 

allowed a second time in special cases, 1608. 

more than once in committee of the whole, 2001. 

must be to the question, 1618. 
SPEECH, 

introduction into, of exti-acts from journals, etc., 1659. 

matter from extraneous sources, 1661. 
STATE LEGISLATURES, 

functions of, 9, 717, 719. 
STATUTES, 

provisions of, when directory, 201. 

peremptory, 201. 

as a source of parliamentary rules, 788. 

form of, and mode of passing, 2046. 

parts of, 2093. 

See Bills. 
STRANGERS, 

to withdraw before division, 1800. 
STUDENTS, 

not residents, 38. 
SLTPLY, 

committee of, 2026, 2031. 

in congTess, 2042. 
SUPPRESS, 

motions to, 1389. 
SUPREjSIACY. See Oath. 

TAX, 

payment of, a qualification of a voter, 45, 47, 54. 
for a voter, 188. 

petitions against, 1146. 

originated in house of commons, 2303. 
teller's, 388. 

appointment of, 1801. 

duty of, 1803. 

disagreement of, 1808. 

misrepresentation by, 1813. 
TERRITORIAL GOVERNMENTS, 9. 
TERRITORIES, 

delegates from, to congress, 253, 281. 
TRIBUNE^ 

what, and where used, 379. 

USAGES, 

as a source of parliamentary' rules, 778. 

VACANCY, 

how filled, 135, 452, 480. 

in senates of certain States, 244. 



INDEX. 1061 

VETO, 

of executive, 450, 700. 

bill may be passed notwitlistanding, 414, 2381, 
power, absolute in Great Britain, 2375. 

qualified in U. S., 2375. 

requisitions to exercise of, 2377. 
VICE-PRESIDENT OF THE UNITED STATES, 

functions of, as president of senate, 289, 298. 
VOICES, 

taking sense of house by, 1794. 
VOTE, 

only one, to be given at same election, 91. 
casting, of returning officers, 92, 118. 

none, in House of Lords, 288, 302. 

of presiding officer, 298, 301. 

■why so called, 303, 306. 

when given, 303, 306, 310. 

how given, 306, 309, 311. 

given by mistake, 307. 

reasons assigned for, 307, 311. 
queried, 97. 
scrutiny of, 98. 

when to be changed or corrected, 99, 108, 1813, 1825, 1828. 
declaration of, 101. 

several candidates having equal number of, 124. 
for unqualified persons, 1 75. 
when void, 176. 

illegal reception and rejection of, 198. 
reconsideration of, 282. 

cannot take place in committee, 1915, 2000. 
by proxy, in house of lords, 401, 434, 1818. 
may be rescinded, 1260. 
right and duty of members to, 1784, 1846. 
by member who should have withdrawn on a division, 1812. 
members properly in house may be compelled to, 1795, 1800, 1803. 
different, given by voice and on division, 1795. 
whether member coming in between first and second putting of question ls 

entitled to, 1797, 1814. 
members of house of lords may protest against, 1820. 
accidental omission of, 1825. 
allowance and disallowance of, 1833. 

decision reversed by, 1849. 
member to be heard on motion to disallow, 1848. 
improperly refused, motion to allow, 1834. 
disallowed on account of interest of members, 1839. 
parties named in bill cannot, 1846. 
members pecuniarily interested in bill cannot, 1846. 

may, after disclaiming, 1846. 
cannot be reconsidered in committee, 1915, 2000. 
VOTERS. See Electors. 



1062 INDEX. 

VOTES, 

bill passed hy miscounting, Appendix, YilL 

WAGER, 

on event of election, 188. 
WARRANT, 

time of opening poll not specified in, 203. 

of presiding officer, 290, 316. Appendix, VI. 
WAYS AND MEANS, 

committee of, 2026, 2035. 

in congress, 2042. 
WITNESSES, 

members exempt from serving as, 598. 

attendance of, how compelled, 634, 662, 934, 941, 1902. 

in House of Lords, sworn, 955. 

Commons, not sworn, 635, 657, 661, 955. 

in U. S., when sworn, 958. 

expenses of, 660. 

subornation of, 630. 

tampering with, 1014. 

summoning, 658. 

occasions for, 930. 

may be required to produce papers, etc., 93fi 

orders with reference to, 937. 
for attendance of, 938. 

service of, 945. 

disobedience of, 946, 951, 1903. 

before select committee, 939, 942, 994, 1017. 
election 

if members, 941. 
officers, 944. 

misconduct of, 944, 993, 1009, 1018. 

absconding of, 947. 

if in custody, 948, 962. 

may be imprisoned, 950, 1011. 

place of attendance of, 953. 

Inability of, to attend, 951, 954. 

how examined, 959, 966, 968, 974, 985, 992. 

by whom questioned, 962, 974. 

answers of, to whom given, 964. 

cross-examination of, 965. 

deportment towards, and of, 967, 973, 1020. 

competency of, 970. 

temporary withdrawal of, 980, 992. 

objections to questions to, 978, 981, 989. 
by witness, 982. 

when excused from answering, 983. 

minutes of examination of, 987. 

may correct mistakes, 988, 991. 

before committee of the whole, 993, 1016 



INDEX. 106-r 

WlTl^ESSES — continued. 

privileges of, 996. 

freedom of, from arrest, 997. 

protection of, against consequences of disclosures, 1001. 
abuse, etc., 1006. 

bills to indemnify, 1005. 

refusal of, to answer or produce papers, 1011. 

false testimony by, 1012. 

prevarication of, 1013. 

implication of others by testimony of, 1024. 

custody of papers produced by, 1022. 
WOMEN, 

not allowed to vote, 24, 30. 

when " " " 31. 

not eligible to office, 56. 
WRITS OF ELECTION, 193, 447, 451, 454, 457. See Appendix, II. 

return of, 132, 135. See Appendix, V. 

not in use, ordinarily, in this country, 135. 

supersedeas of, 456. 

TEAS AND NAYS, 

taking question by, 405, 414, 1493, 1615, 1823. Appendix, IX. 

when may be taken, 1494. 

can be called for only once on same question, 1496. 

debate concerning, 1497. 

cannot be taken in committee of the whole, 2000. 



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